-------------------------------------
JACOR COMMUNICATIONS, INC.
LIQUID YIELD OPTIONTM NOTES DUE 2018
(ZERO COUPON - SENIOR)
-----------------------
INDENTURE
Dated as of February 9, 1998
-----------------------
The Bank of New York,
Trustee
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-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
TABLE OF CONTENTS
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
PAGE
ARTICLE 1 ----
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. . . . . 7
SECTION 1.04. Rules of Construction. . . . . . . . . . . . . . . . . . . 7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . 8
SECTION 2.03. Registrar, Paying Agent and Conversion Agent . . . . . . . 9
SECTION 2.04. Paying Agent to Hold Money and Securities in Trust . . . . 9
SECTION 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . 10
SECTION 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . 13
SECTION 2.08. Outstanding Securities; Determinations of Holders' Action. 14
SECTION 2.09. Temporary Securities . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.11. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notices to Trustee. . . . . . . . . . . . 16
SECTION 3.02. Selection of Securities to Be Redeemed . . . . . . . . . . 16
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . 17
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . 18
SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . 18
SECTION 3.06. Securities Redeemed in Part. . . . . . . . . . . . . . . . 18
SECTION 3.07. Conversion Arrangement on Call for Redemption. . . . . . . 18
SECTION 3.08. Purchase of Securities at the Option of the Holder . . . . 19
SECTION 3.09. Purchase of Securities at Option of the Holder
upon Change in Control . . . . . . . . . . . . . . . . . . 25
SECTION 3.10. Effect of Purchase Notice or Change in Control
Purchase Notice. . . . . . . . . . . . . . . . . . . . . . 29
i
SECTION 3.11. Deposit of Purchase Price or Change in Control
Purchase Price . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12. Securities Purchased in Part . . . . . . . . . . . . . . . 30
SECTION 3.13. Covenant to Comply with Securities Laws upon Purchase
of Securities. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.14. Repayment to the Company . . . . . . . . . . . . . . . . . 31
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . 31
SECTION 4.02. SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.03. Compliance Certificate; Notice of Defaults . . . . . . . . 32
SECTION 4.04. Further Instruments and Acts . . . . . . . . . . . . . . . 33
SECTION 4.05. Maintenance of Office or Agency. . . . . . . . . . . . . . 33
SECTION 4.06. Calculation of Original Issue Discount.. . . . . . . . . . 33
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. . . . . . . . . 34
SECTION 5.02. Successor Company Substituted. . . . . . . . . . . . . . . 34
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 37
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . 38
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 38
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . 38
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . 39
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . 39
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 40
SECTION 6.12. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.13. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . 40
ii
ARTICLE 7
TRUSTEE
SECTION 7.01. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.02. Individual Rights of Trustee . . . . . . . . . . . . . . . 43
SECTION 7.03. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . 43
SECTION 7.04. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.05. Reports by Trustee to Holders. . . . . . . . . . . . . . . 43
SECTION 7.06. Compensation and Indemnity . . . . . . . . . . . . . . . . 43
SECTION 7.07. Replacement of Trustee . . . . . . . . . . . . . . . . . . 44
SECTION 7.08. Successor Trustee by ▇▇▇▇▇▇. . . . . . . . . . . . . . . . 45
SECTION 7.09. Eligibility; Disqualification. . . . . . . . . . . . . . . 45
SECTION 7.10. Preferential Collection of Claims Against Company. . . . . 45
SECTION 7.11. Money Held in Trust. . . . . . . . . . . . . . . . . . . . 46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities . . . . . . . . . . . 46
SECTION 8.02. Repayment to the Company . . . . . . . . . . . . . . . . . 46
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . 47
SECTION 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . 47
SECTION 9.03. Compliance with Trust Indenture Act. . . . . . . . . . . . 48
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions . . 49
SECTION 9.05. Notation on or Exchange of Securities. . . . . . . . . . . 49
SECTION 9.06. Trustee to Sign Supplemental Indentures. . . . . . . . . . 49
SECTION 9.07. Effect of Supplemental Indentures. . . . . . . . . . . . . 49
ARTICLE 10
CONVERSION
SECTION 10.01. Conversion Privilege . . . . . . . . . . . . . . . . . . . 49
SECTION 10.02. Conversion Procedure . . . . . . . . . . . . . . . . . . . 51
SECTION 10.03. Fractional Shares. . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.04. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . 52
SECTION 10.05. Company to Provide Stock . . . . . . . . . . . . . . . . . 52
SECTION 10.06. Adjustment for Change in Capital Stock . . . . . . . . . . 53
SECTION 10.07. Adjustment for Rights Issue. . . . . . . . . . . . . . . . 53
SECTION 10.08. Adjustment for Other Distributions . . . . . . . . . . . . 55
SECTION 10.09. When Adjustment May Be Deferred. . . . . . . . . . . . . . 57
iii
SECTION 10.10. When No Adjustment Required. . . . . . . . . . . . . . . . 57
SECTION 10.11. Notice of Adjustment . . . . . . . . . . . . . . . . . . . 58
SECTION 10.12. Voluntary Increase . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.13. Notice of Certain Transactions . . . . . . . . . . . . . . 58
SECTION 10.14. Reorganization of Company; Special Distributions . . . . . 59
SECTION 10.15. Company Determination Final. . . . . . . . . . . . . . . . 60
SECTION 10.16. Trustee's Adjustment Disclaimer. . . . . . . . . . . . . . 60
SECTION 10.17. Simultaneous Adjustments . . . . . . . . . . . . . . . . . 60
SECTION 10.18. Successive Adjustments . . . . . . . . . . . . . . . . . . 60
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . 60
SECTION 11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.03 Communication by Holders with Other Holders. . . . . . . . 61
SECTION 11.04 Certificate and Opinion as to Conditions Precedent . . . . 62
SECTION 11.05 Statements Required in Certificate or Opinion. . . . . . . 62
SECTION 11.06 Separability Clause. . . . . . . . . . . . . . . . . . . . 62
SECTION 11.07 Rules By Trustee, Paying Agent, Conversion Agent
and Registrar. . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.08 Legal Holiday. . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.09 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . 63
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.12 Multiple Originals . . . . . . . . . . . . . . . . . . . . 63
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
EXHIBIT A FORM OF FACE OF LYON. . . . . . . . . . . . . . . . . . . . . . . A-1
iv
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.07; 7.09
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04; 11.02
[(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01]
[(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01]
(e) . . . . . . . . . . . . . . . . . . . . . 6.11 316(a)(last sentence) 2.08
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
N.A. means Not Applicable
INDENTURE, dated as of February 9, 1998, between JACOR COMMUNICATIONS,
INC., a Delaware corporation ("COMPANY"), and The Bank of New York, a New
York banking corporation, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Liquid Yield
OptionTM Notes due 2018 (Zero Coupon -- Senior) (the "SECURITIES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL", when used with respect to any specified person, means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" or "BOARD" means, with respect to any matter,
either the board of directors of the Company or any committee of such board
duly authorized, with respect to such matter, to exercise the powers of such
board.
"BUSINESS DAY" means each day of the year on which banking institutions
in The City of New York are not required or authorized to close.
1
"CAPITALIZED LEASE OBLIGATIONS" of any person means the obligations of
such person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined
in accordance with GAAP.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) capital stock issued by that corporation.
"CASH" or "CASH" means such coin or currency of The United States of
America as at any time of payment is legal tender for the payment of public
and private debts.
"COMMON STOCK" means the Common Stock, no par value per share, of the
Company as it exists on the date of this Indenture or any other shares of
capital stock of the Company into which such common stock shall be
reclassified or changed.
"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.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by either of its Chairman or Vice Chairman
of the Board, its President, any Vice President, its Treasurer, or any
Assistant Treasurer, and by its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"CONSOLIDATED NET ASSETS" means the total amount of assets of the
Company and its Subsidiaries (less applicable depreciation, amortization and
other valuation reserves), after deducting therefrom all current liabilities
of the Company and its Subsidiaries (other than intercompany liabilities and
the current portion of long-term debt and Capitalized Lease Obligations), all
as set forth on the latest consolidated balance sheet of the Company prepared
in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary the
accounts of which are consolidated with those of the Company as of such date
for public financial reporting purposes.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date hereof.
"GLOBAL SECURITY" means a Security that contains the paragraph and the
schedule referred to in footnotes 1 and 2, respectively, in the form of
Security attached hereto as Exhibit A.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the 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.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"ISSUE PRICE" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is
sold as set forth on the face of the Security.
"OFFICER" means either Chairman or Vice Chairman of the Board, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 11.04 and 11.05, (i) signed in the name of
the Company by either its Chairman of the Board, Vice Chairman of the Board,
President, any Vice President, Treasurer, any Assistant Treasurer,
Controller, or any Assistant Controller, and (ii) attested to by its
Secretary or any Assistant Secretary, and delivered to the Trustee.
3
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 11.04 and 11.05, if applicable, rendered by legal
counsel who may be (i) an employee of, or counsel to, the Company or (ii)
other counsel designated by the Company and reasonably acceptable to the
Trustee.
"ORIGINAL ISSUE DISCOUNT" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security means the principal
amount due at the Stated Maturity of the Security as set forth on the face of
the Security.
"PRINCIPAL PROPERTY" means (i) a parcel of improved or unimproved real
estate or other physical facility or depreciable asset of the Company or a
Subsidiary, the net book value of which on the date of determination exceeds
2% of Consolidated Net Assets and (ii) any group of parcels of real estate,
other physical facilities, and/or depreciable assets of the Company and/or
its Subsidiaries, the net book value of which, when sold in one or a series
of related Sale and Lease-Back Transactions or securing debt issued in
respect of such Principal Properties, on the date of determination exceeds 2%
of the Consolidated Net Assets. For purposes of the foregoing, "related Sale
and Lease-back Transactions" refers to any two or more such contemporaneous
transactions which are on substantially similar terms with substantially the
same parties.
"REDEMPTION DATE" or "REDEMPTION DATE" shall mean the date specified for
redemption of any of the Securities in accordance with the terms of the
Securities and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in paragraph 5 of the Securities.
"SALE AND LEASE-BACK TRANSACTIONS" means any arrangement with any lessor
(other than the Company), providing for the leasing to the Company for a
period of more than three years (including renewals at the option of the
lessee) of any Principal Property that has been or is to be sold or
transferred by the Company to such lessor or to any other person, to which
funds have been or are to be advanced by such lessor or other person on the
security of the leased property.
"SALE PRICE" of a single share of Common Stock on any date means the
closing per share sale price (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case the
average of the average bid and the average ask prices) on such date as
reported in composite transactions for the principal United States securities
exchange on which
4
the Common Stock is traded or, if the Common Stock is not listed on a United
States national or regional stock exchange, as reported by the National
Association of Securities Dealers Automated Quotation System.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" or "SECURITY" means any of the Company's Liquid Yield
OptionTM Notes due 2018 (Zero Coupon -- Senior), as amended or supplemented
from time to time in accordance with the terms hereof, issued under this
Indenture.
"SECURITIES CUSTODIAN" means the Registrar as custodian with respect to
the Securities in global form, or any successor entity thereto.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"STATED MATURITY", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of
such Security 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 the Company, by
one or more subsidiaries of the Company or by the Company and one or more
subsidiaries of the Company, (ii) a partnership in which the Company or a
subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a subsidiary of the Company or the Company
and one or more subsidiaries of the Company, 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.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, and as in effect on the date of this Indenture,
except as provided in Section 9.03.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Sale Price is open for
trading or quotation.
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
5
"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.
"▇▇▇▇/CHILMARK" means ▇▇▇▇/Chilmark Fund L.P. and any person who controls, is
controlled by or is under common control with ▇▇▇▇/Chilmark; provided that
for purposes of this definition "control" means the beneficial ownership of
more than 50% of the total voting power of a person normally entitled to vote
in the election of directors, managers or trustees, as applicable, of a
person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
TERM Section
---- -------
"AGENT MEMBERS". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
"ASSOCIATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
"AVERAGE SALE PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"BENEFICIAL OWNER" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
"CHANGE IN CONTROL". . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
"CHANGE IN CONTROL PURCHASE DATE". . . . . . . . . . . . . . . . . . . . 3.09(a)
"CHANGE IN CONTROL PURCHASE NOTICE". . . . . . . . . . . . . . . . . . . 3.09(c)
"CHANGE IN CONTROL PURCHASE PRICE" . . . . . . . . . . . . . . . . . . . 3.09(a)
"COMPANY NOTICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(e)
"COMPANY NOTICE DATE". . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(e)
"CONVERSION AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"CONVERSION DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
"CONVERSION RATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"DTC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"EXCHANGE ACT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(d)
"EX-DIVIDEND TIME" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
"EXTRAORDINARY CASH DIVIDEND". . . . . . . . . . . . . . . . . . . . . . . 10.08
"LEGAL HOLIDAY". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
"MARKET PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(d)
"NOTICE OF DEFAULT". . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"OPTION" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.02
"PAYING AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"PURCHASE DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(a)
"PURCHASE NOTICE". . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(a)
"PURCHASE PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(a)
"REGISTRAR". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"SECURITIES ACT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08(d)
6
"TIME OF DETERMINATION". . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA
or defined by TIA reference to another statute or regulation have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time in The United States of
America;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
7
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit
A, which is a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage
(provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company and the Trustee). Each Security shall be
dated the date of its authentication.
The Securities are being offered and sold by the Company pursuant to a
Purchase Agreement, dated February 3, 1998, between the Company and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the
"Purchase Agreement").
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall be
executed by the Company by either of its Chairman or Vice Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the Issue Date of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original issue
in an aggregate Principal Amount of up to $383,573,000 upon a Company Order
without any further action by the Company; PROVIDED, HOWEVER, that in the
event that the Company sells any Securities pursuant to the option (the
"OPTION") granted pursuant to Section 2 of the Purchase Agreement, then the
Trustee shall authenticate and deliver Securities for original issue in an
aggregate Principal Amount of up to $383,573,000 plus up to $43,344,000
aggregate Principal Amount of
8
Securities sold pursuant to the Option upon a Company Order. The aggregate
Principal Amount of Securities outstanding at any time may not exceed the
amount set forth in the foregoing sentence, subject to the proviso set forth
therein, except as provided in Section 2.07.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 Principal Amount and only integral
multiples thereof.
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The
Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange ("REGISTRAR"), an office or
agency where Securities may be presented for purchase or payment ("PAYING
AGENT") and an office or agency where Securities may be presented for
conversion ("CONVERSION AGENT"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may 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. The term Conversion Agent includes any additional conversion
agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar other than the
Trustee. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee and the Holders
of the name and address of any such agent and of any change in the office or
agency referred to in Section 4.05. If the Company fails to maintain a
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 Company or any Subsidiary or an Affiliate of either of
them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities Custodian
with respect to the Global Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. In
accordance with Section 4.05 and except as otherwise provided herein, prior
to 12:00 noon, New York City time, or on each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of
money or, if permitted by the terms hereof, securities sufficient to make
such payments when so becoming due. The Company 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 Securityholders or the Trustee all
money and securities held by the Paying Agent for the
9
making of payments in respect of the Securities and shall notify the Trustee
of any default by the Company in making any such payment. At any time during
the continuance of any default by the Company in making any payments in
respect of the Securities, the Paying Agent shall, upon the written request
of the Trustee, forthwith pay to the Trustee all money and securities so held
in trust. If the Company, a Subsidiary or an Affiliate of any of them acts
as Paying Agent, it shall segregate the money and securities held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money and securities held by it to the
Trustee and to account for any money and securities disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money and
securities.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee
(i) at least semiannually on June 1 and December 1 a list of the names and
addresses of Securityholders dated within 15 days of the date on which the
list is furnished and (ii) 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 Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. Upon surrender for
registration of transfer of any Definitive Security, together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03 or at the office or agency referred to
in Section 4.05, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Securities of any authorized
denomination or denominations, of a like aggregate Principal Amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company 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 Definitive Securities from
the Securityholder requesting such transfer or exchange (other than any
exchange of a temporary Security for a Definitive Security not involving any
change in ownership).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be exchanged
for a beneficial interest in a Global Security except upon satisfaction of
the requirements set forth below. Upon receipt by the Registrar of a
Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Registrar, together with written
instructions of the Holder directing the Registrar to make, or to direct the
Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities repre-
10
sented by the Global Security, then the Registrar shall cancel such
Definitive Security and cause, or direct the Securities Custodian to cause,
in accordance with the standing instructions and procedures existing between
the Depositary and the Securities Custodian, the aggregate principal amount
of Securities represented by the Global Security to be increased accordingly.
If no Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate a new Global Security in the appropriate principal
amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer and
exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a Definitive
Security. Upon receipt by the Registrar of written instructions or such
other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Security, and, if such beneficial interest is being
transferred to the Person designated by the Depositary as being the
beneficial owner, a certification from such person to that effect (in
substantially the form set forth on the reverse of the Security)(all of
which may be submitted by facsimile), then the Registrar or the
Securities Custodian, at the direction of the Trustee, will cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate
principal amount of the Global Security to be reduced and, following
such reduction, the Company will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate, the
Trustee or the Trustee's authenticating agent will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(d) 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 Registrar. The Registrar
shall deliver such Definitive Securities to the persons in whose names
such Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
11
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF DEPOSITARY.
If at any time:
(i) the Depositary for the Securities notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee and
the Registrar in writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive
Securities, will, or its authenticating agent will, authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the
principal amount of the Global Securities, in exchange for such Global
Securities.
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, such Global
Security shall be returned to or retained and cancelled by the Registrar. At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
cancelled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Registrar or the Securities Custodian, at the direction of
the Registrar, to reflect such reduction.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES. At the option
of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate Principal
Amount, upon surrender of the Securities to be exchanged, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) Definitive Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed), (b) any Securities in respect of which a
Purchase Notice or a Change in Control Purchase Notice has been given and not
withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or (c) any Securities for a period of 15
days before the mailing of a notice of redemption.
12
Successive registrations and registrations of transfers and exchanges as
aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
Any Registrar appointed pursuant to Section 2.03 hereof shall provide to
the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
SECTION 2.07. REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a BONA FIDE purchaser, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and
Principal ▇▇▇▇▇▇, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security 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 Securities duly issued hereunder.
The provisions of this Section 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 Securities.
13
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities outstanding at any time are all the Securities authenticated by the
Trustee (including any Security represented by a Global Security) except for
those cancelled by it, those delivered to it for cancellation, mutilated,
destroyed, lost or stolen Securities for which the Trustee has authenticated and
delivered a new Security in lieu therefor pursuant to Section 2.07, those paid
pursuant to Section 2.07, those reductions in the interest in a Global Security
effected by the Registrar hereunder and those described in this Section 2.08 as
not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite Principal Amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Trust Officer of the Trustee actually knows to be so owned
shall be so disregarded. Subject to the foregoing, only Securities 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 Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security 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 a Purchase Date or a Change in
Control Purchase Date, or on Stated Maturity, money or, if permitted by the
terms hereof including, without limitation, Section 3.08, securities sufficient
to pay the Securities payable on that date, then on and after that date such
Securities shall cease to be outstanding and Original Issue Discount and
interest, if any, on such Securities shall cease to accrue and all other rights
of the Holder shall terminate (other than the right to receive the applicable
Redemption Price, Purchase Price or Change in Control Purchase Price, as the
case may be, upon delivery of the Security in accordance with the terms of this
Indenture); PROVIDED, that if such Securities 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 Security is converted in accordance with Article 10, then from and
after the Conversion Date such Security shall cease to be outstanding and
Original Issue Discount and interest, if any, shall cease to accrue on such
Security.
SECTION 2.09. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed
14
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the Officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03 or
4.05, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. CANCELLATION. All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article 3, conversion pursuant
to Article 10, 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 Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
10. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
delivered to the Company.
SECTION 2.11. CUSIP NUMBERS. The Company in issuing the Securities 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 Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
15
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at its
option, may redeem the Securities for cash in accordance with the provisions set
forth in paragraphs 5 and 7 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Principal Amount of Securities to
be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 at least 45 days but not more than 60 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee). If fewer
than all the Securities are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed 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 Securities are then listed). The Trustee shall make the
selection at least 30 but not more than 60 days before the Redemption Date from
outstanding Securities not previously called for redemption. The Trustee may
select for redemption portions of the Principal Amount of Securities that have
denominations larger than $1,000. Securities 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 Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is thereafter surrendered
for conversion in part before termination of the conversion right with respect
to the portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be), solely for purposes of determining
the aggregate Principal Amount of Securities to be redeemed by the Company, to
be the portion selected for redemption. Securities that have been converted
during a selection of Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection. Nothing in this Section 3.02
shall affect the right of any Holder to convert any Security pursuant to Article
10 before the termination of the conversion right with respect thereto.
16
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than 60
days before a Redemption Date, the Trustee, in the name and at the expense of
the Company, shall cause notice of redemption to be mailed, first-class postage
prepaid, to each Holder of Securities to be redeemed at his address as it
appears on the list of Securityholders maintained pursuant to Section 2.05. At
the Company's written request, the Trustee shall, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date (upon which the Redemption Price shall be
paid);
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent and
of the office or agency referred to in Section 4.05;
(5) that Securities 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 Securities must satisfy the
requirements set forth in paragraph 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to
collect the Redemption Price;
(8) the CUSIP number of the Securities;
(9) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and Principal Amounts of the particular Securities
to be redeemed; and
(10) that, unless the Company defaults in payment of the Redemption
Price, Original Issue Discount on Securities called for redemption and
interest, if any, will cease to accrue on and after the Redemption Date.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least three Business Days prior to such notice of
redemption.
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SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date stated in the notice and at the Redemption Price therefor except
for Securities that are converted in accordance with the terms of this
Indenture. Upon the later of the Redemption Date and the date such Securities
are surrendered to the Paying Agent or at the office or agency referred to in
Section 4.05, such Securities called for redemption shall be paid at the
Redemption Price therefor.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or prior to 10:00 a.m. on
the Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company 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 Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation. The Paying Agent shall as promptly
as practicable return to the Company any money, with interest, if any, thereon
(subject to the provisions of Section 7.01(f)), not required for that purpose
because of conversion of Securities pursuant to Article 10. If such money is
then held by the Company or a Subsidiary or an Affiliate of the Company in trust
and is not required for such purpose it shall be discharged from such trust.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Security in an authorized
denomination equal in Principal Amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange, in lieu
of redemption, for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase all or a portion of such Securities by paying to the
Trustee in trust for the Securityholders whose Securities are to be so
purchased, on or before the close of business on the Redemption Date, an amount
that, together with any amounts deposited with the Trustee by the Company for
redemption of such Securities, is not less than the Redemption Price, together
with interest, if any, accrued to the Redemption Date, of such Securities.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers, but no such
agreement shall relieve the Company of its obligation to pay such Redemption
Price and interest, if any. If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such 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
18
Holders whose Securities 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 Company for the redemption of Securities. Without
the Trustee's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the
Company and such purchasers, including the costs and expenses 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. PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER.
(a) GENERAL. Securities shall be purchased by the Company pursuant to
paragraph 6 of the Securities as of February 9, 2003, February 9, 2008 and
February 9, 2013 (each, a "PURCHASE DATE"), at the purchase price specified
therein (each, a "PURCHASE PRICE"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or agency referred
to in Section 4.05 by the Holder of a written notice of purchase (a
"PURCHASE NOTICE") at any time from the opening of business on the date
that is 20 Business Days prior to a Purchase Date until the close of
business on such Purchase Date stating:
(A) the certificate number of the Security that the Holder will
deliver to be purchased;
(B) the portion of the Principal Amount of the Security which
the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof;
(C) that such Security shall be purchased on the Purchase Date
pursuant to the terms and conditions specified in this Indenture and
in paragraph 6 of the Securities; and
(D) if the Company elects pursuant to Section 3.08(b) to pay the
Purchase Price on such Purchase Date, in whole or in part, in shares
of Common Stock, but such portion of the Purchase Price to be paid in
Common Stock is ultimately to be paid in cash because any condition in
Section 3.08(d) is not satisfied, such Holder elects (i) to withdraw
such Purchase Notice as to some or all of the Securities to which it
relates (stating the Principal Amount and certificate numbers
19
of the Securities as to which such withdrawal shall relate), or
(ii) to receive cash in respect of the Purchase Price for all
Securities subject to such Purchase Notice; and
(2) delivery of such Security prior to, on or after the Purchase Date
(together with all necessary endorsements) to the Paying Agent at the
offices of the Paying Agent or to the office or agency referred to in
Section 4.05, such delivery being a condition to receipt by the Holder of
the Purchase Price therefor; PROVIDED, HOWEVER, that such Purchase Price
shall be so paid pursuant to this Section 3.08 only if the Security so
delivered conforms in all respects to the description thereof in the
related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any written notice of
withdrawal delivered by such Holder pursuant to the terms of Section 3.10, fails
to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1) above, such Holder shall be deemed to have
elected to receive cash in respect of the Purchase Price otherwise payable in
Common Stock.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security 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 Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions hereof
shall be consummated by the delivery of the consideration to be received by the
Holder promptly following the later of the Purchase Date and the time of
delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or the office or agency referred to in Section 4.05 the
Purchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw at any time prior to the close of business on the Purchase Date such
Purchase Notice by delivery of a written notice of withdrawal to the Paying
Agent or such office or agency in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
(b) COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF PURCHASE PRICE. The
Securities to be purchased pursuant to Section 3.08(a) may be paid for, at the
election of the Company, in cash or Common Stock, or in any combination of cash
and Common Stock, subject to the conditions set forth in this Section 3.08. The
Company shall designate, in the notice from the Company delivered pursuant to
Section 3.08(e), whether the Company will purchase the Securities for cash or
Common Stock, and, if a combination thereof, the percentages of the
20
Purchase Price of Securities in respect of which it will pay in cash or
Common Stock; PROVIDED that the Company will pay cash for fractional
interests in Common Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 3.08 shall receive the same percentage of
cash or Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 3.08(d) with regard to the payment of cash
in lieu of fractional shares of Common Stock and (ii) in the event that the
Company is unable to purchase the Securities of a Holder or Holders for
Common Stock because any necessary qualifications or registrations of the
Common Stock under applicable state securities laws cannot be obtained, the
Company may purchase the Securities of such Holder or Holders for cash. The
Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company
has given notice thereof to Securityholders except pursuant to this Section
3.08(b) or Section 3.08(d).
At least five Business Days before the Company Notice Date (as defined
below), the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company;
(ii) the information required by Section 3.08(e);
(iii) that the conditions to such manner of payment set forth in
Section 3.08(d) have or will be complied with; and
(iv) whether the Company desires the Trustee to give the notice
required by Section 3.08(e).
(c) PURCHASE WITH CASH. On each Purchase Date, at the option of the
Company, the Principal Amount of the Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be purchased by the Company with cash equal to the aggregate
Purchase Price of such Securities.
(d) PAYMENT BY COMMON STOCK. On each Purchase Date, at the option of the
Company, the Principal Amount of the Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be purchased by the Company by the issuance of a number of shares
of Common Stock equal to the quotient obtained by dividing (i) the amount of
cash to which the Securityholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Securities in cash by (ii) the Market Price (as defined
below) of a share of Common Stock, subject to the next succeeding paragraph.
21
The Company will not issue a fractional share of Common Stock in payment
of the Purchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a fraction
of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent, with one-half
cent being rounded upward. It is understood that if a Holder elects to have
more than one Security purchased, the number of shares of Common Stock shall
be based on the aggregate amount of Securities to be purchased.
The Company's right to exercise its election to purchase the Securities
pursuant to this Section through the issuance of shares of Common Stock shall be
conditioned upon:
(i) the Company's not having given notice of an election to pay
entirely in cash and its giving of timely notice of election to
purchase all or a specified percentage of the Securities with Common
Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act
of 1933, as amended (the "SECURITIES ACT") and the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), in each case if required
for the initial issuance thereof;
(iii) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be issued by the Company in payment of the
Purchase Price in respect of Securities have been duly authorized and,
when issued and delivered pursuant to the terms of this Indenture in
payment of the Purchase Price in respect of the Securities, will be
validly issued, fully paid and nonassessable and shall be free of any
preemptive rights and any lien or adverse claim (provided that such
Opinion of Counsel may state that, insofar as it relates to the
absence of such preemptive rights, liens and adverse claims, it is
given upon the best knowledge of such counsel), and, in the case of
such Officers' Certificate, that conditions (i), (ii) and (iii) above
have been satisfied and, in the case of such Opinion of Counsel, that
conditions (ii) and (iii) above have been satisfied.
22
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Principal Amount of Securities and the
Sale Price of a share of Common Stock on each of the seven Business Days prior
to the Purchase Date. The Company may elect to pay in Common Stock only if the
information necessary to calculate the Market Price is reported in THE WALL
STREET JOURNAL or another daily newspaper of national circulation. If such
conditions are not satisfied prior to or on the Purchase Date and the Company
elected to purchase the Securities pursuant to this Section 3.08 through the
issuance of shares of Common Stock, the Company shall pay, without further
notice, the Purchase Price in cash.
The "MARKET PRICE" means the average of the Sale Price of the Common Stock
for the five Trading Day period ending on the third Trading Day prior to the
related Purchase Date, appropriately adjusted to take into account the actual
occurrence, during the seven Trading Days preceding such Purchase Date, of any
event described in Section 10.06, 10.07 or 10.08; SUBJECT, HOWEVER, to the
conditions set forth in Sections 10.09 and 10.10.
(e) NOTICE OF ELECTION. The Company shall send notices of its election
(the "COMPANY NOTICE") to purchase with cash or Common Stock or any combination
thereof to the Holders (and to beneficial owners as required by applicable law)
in the manner provided in Section 3.03. The Company Notice shall be sent to
Holders (and to beneficial owners as required by applicable law) on a date not
less than 20 Business Days prior to the Purchase Date (such date not less than
20 Business Days prior to the Purchase Date being herein referred to as the
"COMPANY NOTICE DATE"). Such notices shall state the manner of payment elected
and shall contain the following information:
In the event the Company has elected to pay the Purchase Price (or any
specified percentage thereof) with Common Stock, the notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date equal to
such specified percentage of the Purchase Price of the Securities held by
such Holder (except for any cash amount to be paid in lieu of fractional
shares);
(2) set forth the method of calculating the Market Price of the
Common Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market risk
with respect to the value of the Common Stock to be received from the date
such Market Price is determined to the Purchase Date.
23
In any case, each notice shall include a form of Purchase Notice to be
completed by the Securityholder and shall state:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given
may be converted into Common Stock at any time prior to the close of
business on the applicable Purchase Date only if the applicable
Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(iv) that Securities must be surrendered to the Paying Agent or to
the office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly
following the later of the Purchase Date and the time of surrender of
such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities and that
Holders who want to convert Securities must satisfy the requirements
set forth in paragraph 8 of the Securities; and
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms
of Section 3.08(a)(1)(D) or Section 3.10).
At the Company's written request, the Trustee shall give such notice in the
Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in all
cases, the text of such notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 Principal Amount of Securities, the Company will publish
such determination in THE WALL STREET JOURNAL or another daily newspaper of
national circulation and furnish the Trustee with an affidavit of publication.
24
(f) COVENANTS OF THE COMPANY. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any lien or adverse claim.
The Company shall use its best efforts to list or cause to have quoted any
shares of Common Stock to be issued to purchase Securities on the principal
national securities exchange or over-the-counter or other domestic market on
which any other shares of the Common Stock are then listed or quoted. The
Company will promptly inform the Trustee in writing of any such listing.
(g) PROCEDURE UPON PURCHASE. The Company shall deposit cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests, as
applicable) or shares of Common Stock, or any combination thereof, as
applicable, at the time and in the manner as provided in Section 3.11,
sufficient to pay the aggregate Purchase Price of all Securities to be purchased
pursuant to this Section 3.08. As soon as practicable after the later of the
Purchase Date and the date such Securities are surrendered to the Paying Agent
or at the office or agency referred to in Section 4.05, the Company shall
deliver to each Holder entitled to receive Common Stock through the Paying Agent
a certificate for the number of full shares of Common Stock issuable in payment
of the Purchase Price and cash in lieu of any fractional interests. The person
in whose name the certificate for Common Stock is registered shall be treated as
a holder of record of such Common Stock on the Business Day following the
related Purchase Date. Subject to Section 3.08(d), no payment or adjustment
will be made for dividends on the Common Stock the record date for which
occurred prior to the Purchase Date.
(h) TAXES. If a Holder of a Security is paid in Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on such
issue of shares of Common Stock. However, the Holder shall pay any such tax
which is due because the Holder requests the shares of Common Stock to be issued
in a name other than the Holder's name. The Paying Agent may refuse to deliver
the certificates representing the Common Stock being issued in a name other than
the Holder's name until the Paying Agent receives a sum sufficient to pay any
tax which will be due, as set forth in an Officers' Certificate, because the
shares of Common Stock are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax withholding required by law or
regulations.
SECTION 3.09. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE
IN CONTROL.
(a) If on or prior to February 9, 2003 there shall have occurred a Change
in Control, Securities shall be purchased, at the option of the Holder thereof,
by the Company at the purchase price specified in paragraph 6 of the Securities
(the "CHANGE IN CONTROL PURCHASE PRICE"), on the
25
date that is 35 Business Days after the occurrence of the Change of Control
(the "CHANGE IN CONTROL PURCHASE DATE"), subject to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 3.09(c).
A "CHANGE IN CONTROL" shall be deemed to have occurred at such time after
the original issuance of the Securities as either of the following events shall
occur:
(i) There shall be consummated any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation
or pursuant to which the Common Stock would be converted into cash,
securities or other property, other than a consolidation or merger of the
Company in which the holders of Common Stock immediately prior to the
consolidation or merger have, directly or indirectly, at least a majority
of the Common Stock of the continuing or surviving corporation immediately
after such consolidation or merger; or
(ii) There is a report filed by any person, including its Affiliates
and Associates, other than ▇▇▇▇/Chilmark, the Company, any Subsidiary of
the Company, or any employee benefit plan of either the Company or any
Subsidiary of the Company, on Schedule 13D or 14D-1 (or any successor
schedule, form or report) pursuant to the Exchange Act, disclosing that
such person (for the purposes of this Section 3.09 only, the term "person"
shall include a "person" within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing) has become the beneficial owner (as the term "BENEFICIAL OWNER"
is defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of 50% or more of the voting power of the Company's
Common Stock then outstanding; PROVIDED, HOWEVER, that a person shall not
be deemed beneficial owner of, or to own beneficially, (A) any securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such person or any of such person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange thereunder, or
(B) any securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act, and (2) is not also then reportable
on Schedule 13D (or any successor schedule, form or report) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.09, a Change in
Control shall not be deemed to have occurred if at any time the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit plan
of the Company or any Subsidiary, or any person holding Common Stock for or
pursuant to the terms of any such employee benefit plan files or becomes
obligated to file a report under or in response to Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of Common Stock, whether in
excess of 50% or otherwise.
26
"ASSOCIATE" shall have the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(b) Within 15 Business Days after the occurrence of a Change in Control,
(i) the Company shall mail a written notice of such Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners if
required by applicable law) and (ii) the Company shall cause a copy of such
notice to be published in THE WALL STREET JOURNAL or another daily newspaper of
national circulation. The notice shall include a form of Change in Control
Purchase Notice to be completed by the Securityholder and shall state:
(1) the events causing a Change in Control and the date such Change
in Control is deemed to have occurred for purposes of this Section 3.09;
(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.09 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent
and the office or agency referred to in Section 4.05;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase Notice
has been given may be converted into Common Stock (or, in lieu thereof,
cash, if the Company shall so elect) at any time prior to the close of
business on the Change of Control Purchase Date only if the Change in
Control Purchase Notice has been withdrawn by the Holder in accordance with
the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent or the
office or agency referred to in Section 4.05 to collect payment;
(9) that the Change in Control Purchase Price for any Security as to
which a Purchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Change in Control Purchase Date and the
time of surrender of such Security as described in (8);
(10) the procedures the Holder must follow to exercise rights under
this Section 3.09 and a brief description of those rights;
27
(11) briefly, the conversion rights of the Securities; and
(12) the procedures for withdrawing a Change in Control Purchase
Notice.
(c) A Holder may exercise its rights specified in Section 3.09(a) upon
delivery of a written notice of purchase (a "CHANGE IN CONTROL PURCHASE NOTICE")
to the Paying Agent or to the office or agency referred to in Section 4.05 at
any time prior to the close of business on the Change in Control Purchase Date,
stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(3) that such Security shall be purchased on the Change in Control
Purchase Date pursuant to the terms and conditions specified in paragraph 6
of the Securities.
Receipt of the Security by the Paying Agent prior to, on or after the
Change in Control Purchase Date (together with all necessary endorsements), at
the offices of the Paying Agent or to the office or agency referred to in
Section 4.05 shall be a condition to the receipt by the Holder of the Change in
Control Purchase Price therefor; PROVIDED, HOWEVER, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 3.09 only if the
Security so delivered to the Paying Agent or such office or agency shall conform
in all respects to the description thereof set forth in the related Change in
Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security 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 Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.09 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Change in Control
Purchase Date and the date such Securities are surrendered to the Paying Agent
or at the office or agency referred to in Section 4.05.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or to the office or agency referred to in Section 4.05 the
Change in Control Purchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Purchase Notice at any time
prior to or on the Change in Control Purchase Date by delivery of a
28
written notice of withdrawal to the Paying Agent or to such office or agency
in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Change in Control Purchase Notice or written withdrawal thereof.
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Security. Such Purchase Price or Change in Control
Purchase Price shall be paid to such Holder promptly following the later of (x)
the Business Day following the Purchase Date or the Change in Control Purchase
Date, as the case may be, with respect to such Security (provided the conditions
in Section 3.08(a) or Section 3.09(c), as applicable, have been satisfied) and
(y) the time of delivery of such Security to the Paying Agent or to the office
or agency referred to in Section 4.05 by the Holder thereof in the manner
required by Section 3.08(a) and (g) or Section 3.09(c), as applicable.
Securities in respect of which a Purchase Notice or Change in Control Purchase
Notice, as the case may be, has been given by the Holder thereof may not be
converted into shares of Common Stock on or after the date of the delivery of
such Purchase Notice or Change in Control Purchase Notice, as the case may be,
unless such Purchase Notice or Change in Control Purchase Notice, as the case
may be, has first been validly withdrawn as specified in the following two
paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case may be,
may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent or to the office or agency referred to in Section
4.05 at any time on or prior to the Purchase Date or the Change in Control
Purchase Date, as the case may be, specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted;
(2) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
29
A written notice of withdrawal of a Purchase Notice may be in the form set
forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to Sections 3.08
(other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu of fractional shares of Common Stock) or 3.09 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Purchase Notice or Change in
Control Purchase Notice, as the case may be) and is continuing an Event of
Default (other than a default in the payment of the Purchase Price or Change in
Control Purchase Price, as the case may be, with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any
Securities (x) with respect to which a Purchase Notice or Change in Control
Purchase Notice, as the case may be, 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 Purchase Price or Change in Control
Purchase Price, as the case may be, with respect to such Securities) in which
case, upon such return, the Purchase Notice or Change in Control Purchase Notice
with respect thereto shall be deemed to have been withdrawn.
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. Prior to 3:00 p.m. (local time in The City of New York) on the Business
Day following the Purchase Date or the Change in Control Purchase Date, as the
case may be, the Company shall deposit with the Trustee or with the Paying Agent
(or, if the Company or a Subsidiary or an Affiliate of either of them is acting
as Paying Agent, shall segregate and hold in trust as provided in Section 2.04)
an amount of cash in immediately available funds or securities, if expressly
permitted hereunder, sufficient to pay the aggregate Purchase Price or Change in
Control Purchase Price, as the case may be, of all the Securities or portions
thereof which are to be purchased as of the Purchase Date or Change in Control
Purchase Date, as the case may be.
SECTION 3.12. SECURITIES PURCHASED IN PART. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent or
the office or agency referred to in Section 4.05 (with, if the Company or the
Trustee so requires, due endorsement, or a written instrument of transfer in
form satisfactory to the Company and the Trustee executed by the Holder or such
▇▇▇▇▇▇'s attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate Principal Amount equal to,
and in exchange for, the portion of the Principal Amount of the Security so
surrendered which is not purchased.
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SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES. In connection with any offer to purchase or purchase of Securities
under Section 3.08 or 3.09 hereof, the Company shall (i) comply with Rule 13e-4
and Rule 14e-1 under the Exchange Act, if applicable, (ii) file the related
Schedule 13E-4 (or any successor schedule, form or report) under the Exchange
Act, if applicable, and (iii) otherwise comply with all Federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
purchase of the Securities (including positions of the SEC under applicable
no-action letters) so as to permit the rights and obligations under Sections
3.08 and 3.09 to be exercised in the time and in the manner specified in
Sections 3.08 and 3.09.
SECTION 3.14. REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company, upon written request, any cash or shares of Common
Stock, together with interest on such cash as hereinafter provided and dividends
on such shares of Common Stock, if any, (subject to the provisions of Section
7.01(f)) held by them for the payment of a Purchase Price or Change in Control
Purchase Price, as the case may be, of the Securities that remain unclaimed as
provided in paragraph 12 of the Securities; PROVIDED, HOWEVER, that to the
extent that the aggregate amount of cash or shares of Common Stock deposited by
the Company pursuant to Section 3.11 exceeds the aggregate Purchase Price or
Change in Control Purchase Price, as the case may be, of the Securities or
portions thereof to be purchased, then promptly after the Business Day following
the Purchase Date or Change in Control Purchase Date, as the case may be, the
Trustee shall return any such excess to the Company together with interest as
hereinafter provided or dividends, if any, thereon (subject to the provisions of
Section 7.01(f)). Any cash deposited with the Trustee or with the Paying Agent
pursuant to Section 3.11 hereof, shall be invested by the Trustee or Paying
Agent, as applicable, in short term obligations of, or fully guaranteed by, the
United States of America, or commercial paper rated A-1 or better by Standard
and Poor's Corporation or P-1 or better by ▇▇▇▇▇'▇ Investors Service, Inc. or
the Dreyfus Cash Management Fund or the American AAdvantage Money Market Fund,
as specifically directed in writing by the Company. Interest earned on such
investments shall be repaid to the Company pursuant to this Section 3.14.
Except as provided for in this Section 3.14, the Trustee shall be under no
liability for interest on any money received by it pursuant to this Indenture.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of the Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Principal Amount, Issue Price,
accrued Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price and interest, if any, shall
31
be considered paid on the applicable date due if on such date the Trustee or
the Paying Agent holds, in accordance with this Indenture, cash or
securities, if expressly permitted hereunder, sufficient to pay all such
amounts then due.
The Company shall, to the extent permitted by law, pay interest on overdue
amounts at the per annum rate of interest set forth in paragraph 1 of the
Securities, compounded semi-annually, which interest on overdue amounts (to the
extent payment of such interest shall be legally enforceable) shall accrue from
the date such overdue amounts were originally due and payable.
SECTION 4.02. SEC REPORTS. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual and quarterly
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act (or any such successor provisions
thereto). In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act (or any such
successor provisions), it shall continue to provide the Trustee with reports
containing substantially the same information as would have been required to be
filed with the SEC had the Company continued to have been subject to such
reporting requirements, and the Trustee shall make any such reports available to
Securityholders upon request. In such event, such reports shall be provided at
the times the Company would have been required to provide reports had it
continued to have been subject to such reporting requirements. The Company also
shall comply with the other provisions of TIA Section 314(a), to the extent such
provisions are applicable. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULTS.
(a) The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending on
December 31, 1997) a certificate of the principal executive officer, the
principal financial officer, or principal accounting officer of the Company
stating whether or not, to the knowledge of the signer, the Company has complied
with all conditions and covenants on its part contained in this Indenture and,
if the signer has obtained knowledge of any default by the Company in the
performance, observance or fulfillment of any such condition or covenant,
specifying each such default and the nature thereof. For the purpose of this
Section 4.03, compliance shall be determined without regard to any grace period
or requirement of notice provided pursuant to the terms of this Indenture.
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(b) The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five Business Days of its
becoming aware of such Default or Event of Default.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company 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 Company will maintain
in the Borough of Manhattan, The City of New York, in such location as may be
required by the rules of any securities exchange or quotation system on which
the Securities may from time to time be listed, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be principally administered, which office on the date hereof is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, shall be
such office or agency for all of the aforesaid purposes unless the Company shall
maintain some other office or agency for such purposes and shall give prompt
written notice to the Trustee of the location, and any change of location, of
such other office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in The Borough of
Manhattan, The City of New York, for such purposes.
SECTION 4.06. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company shall
file with the Trustee promptly following the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. So long as any
Securities shall be outstanding, the Company shall not consolidate with or merge
into any other corporation or other person or convey, transfer or lease its
properties and assets substantially as an entirety to any person (such successor
corporation or person, as the case may be, shall in this Article 5 be referred
to as the "Successor Company"), unless
(1) either (x) the Company shall be the continuing corporation or (y)
the Successor Company (if other than the Company) shall be organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and premium, if any, and interest, if any, on all the Securities and the
performance of every covenant of this Indenture and in the Securities on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED. Upon any consolidation with
or merger into any other corporation or other person, or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 5.01, the Successor Company or person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor Company or person had been named as
the Company herein, and thereafter, except in the case of a lease and
obligations the Company may have under a supplemental indenture pursuant to
Section 10.14, the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities. Subject to Section 9.06,
the Company, the Trustee and the successor person shall enter into a
supplemental indenture to
34
evidence the succession and substitution of such successor person and such
discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or Change in Control Purchase Price on any Security when the same
becomes due and payable at its Stated Maturity, upon redemption, upon
declaration, when due for purchase by the Company or otherwise, whether or
not such payment shall be prohibited by this Indenture;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(3) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding;
(B) 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;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such petition or the appointment
of or taking possession by a Custodian;
(4) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
35
(A) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days;
(5) the Company fails to deliver shares of Common Stock or pay cash
in lieu of fractional shares in accordance with the terms hereof when such
Common Stock or cash in lieu of fractional shares is required to be
delivered, upon conversion of a Security and such failure is not remedied
for a period of 10 days; or
(6) (a) default shall occur (i) in the payment of any principal on
any debt for borrowed money of the Company (excluding any non-recourse
debt), in an aggregate principal amount in excess of $10.0 million, when
due at its final maturity after giving effect to any applicable grace
period and the holder thereof shall have taken affirmative action to
enforce the payment thereof, or (ii) in the performance of any term or
provision of any debt for borrowed money of the Company (excluding any non-
recourse debt) in an aggregate principal amount in excess of $10.0 million
that results in such debt becoming or being declared due and payable prior
to the date on which it would otherwise become due and payable, unless, in
the case of either clause (i) or (ii) above, (x) such acceleration or
action to enforce payment, as the case may be, has been rescinded or
annulled, (y) such debt has been discharged or (z) a sum sufficient to
discharge in full such debt has been deposited in trust by or on behalf of
the Company, in each case, within a period of 10 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding, a written
notice specifying such default or defaults and stating that such notice is
a "Notice of Default" hereunder.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after 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."
36
The Company shall deliver to the Trustee, within 30 days after it becomes
aware of the occurrence thereof, written notice of any event which with the
giving of notice and the lapse of time or both would become an Event of Default
under clause (2) or clause (6), its status and what action the Company is 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(3) or (4)) occurs and is continuing, unless
the Principal Amount of all the Securities shall have already become due and
payable, either the Trustee by notice to the Company, or the Holders of at least
25% in aggregate Principal Amount of the Securities at the time outstanding by
notice to the Company and the Trustee, may declare the Issue Price and accrued
Original Issue Discount through the date of declaration on all the Securities to
be immediately due and payable, whereupon such Issue Price and accrued Original
Issue Discount shall be due and payable immediately; provided that, if an Event
of Default specified in Section 6.01(3) or (4) occurs and is continuing, the
Issue Price and accrued Original Issue Discount on all the Securities through
the date of the occurrence of such Event of Default shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. The Holders of a majority in aggregate
Principal Amount of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Securityholder) may rescind 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 Issue Price and accrued Original Issue Discount
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 Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder 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 Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (a) an Event of Default described
in Section 6.01(1), (b) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected or
(c)
37
a Default under Article 10. When a Default is waived, it is deemed cured and
shall cease to exist, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount of the Securities 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 unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee shall have been provided with reasonable security
or indemnity against such liability satisfactory to the Trustee.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities 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
Securities 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 against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
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, Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase Price, Change in Control Purchase Price or interest, if any, in
respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 10 or to bring suit for the enforcement of
any such
38
payment on or after such respective dates or the right to convert, shall not
be impaired or affected adversely without the consent of each such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities 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
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company 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, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, 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) 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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
39
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:
FIRST: to the Trustee for amounts due under Section 7.06;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and 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, 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 initiated 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 Securities at the time outstanding.
SECTION 6.12. NOTICE OF DEFAULTS. The Trustee shall, within 90 days after
the occurrence of any Default, mail to all Holders of Securities, as the names
and addresses of such Holders appear on the books of registry of the Company,
notice of all Defaults of which the Trustee shall be aware, unless such Defaults
shall have been cured or waived before the giving of such notice; PROVIDED that,
except in the case of a Default described in Section 6.01(1), 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 Trust
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities.
SECTION 6.13. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent it may lawfully do so) that it shall 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, that would prohibit
40
or forgive the Company from paying all or any portion of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price or Change in Control Purchase Price in respect of the
Securities, or any interest on any such amounts, as contemplated herein, or
that may affect the covenants or the performance of this Indenture or the
Securities; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede 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. RIGHTS OF TRUSTEE.
(a) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(b) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(d) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(e) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Except as provided in
Section 3.14 hereof, the Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder.
(f) The Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(g) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or
41
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts
stated therein).
(h) The Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the outstanding Securities relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities.
(j) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(k) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee reasonably believes
that a default may exist, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(l) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(m) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties.
42
(n) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Trust 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 principal corporate trust office of the Trustee, and such
notice references the Securities and this Indenture.
SECTION 7.02. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.09 and 7.10.
SECTION 7.03. TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, it
shall not be responsible for any statement in the registration statement for the
Securities under the Securities Act or in the Indenture or the Securities (other
than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
SECTION 7.04. NOTICE OF DEFAULTS. The Trustee shall, within 90 days after
the occurrence of any Default, mail to all Holders of Securities, as the names
and addresses of such Holders appear on the books of registry of the Company,
notice of all Defaults of which the Trustee shall be aware, unless such Defaults
shall have been cured or waived before the giving of such notice. Except in the
case of a Default described in Section 6.01(1), 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 Trust Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities.
SECTION 7.05. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
June 1, beginning with the June 1, following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such June 1
that complies with TIA Section 313(a), if required by said Section. The Trustee
also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be provided to the Company and shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company agrees promptly to
notify the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.06. COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such compensation (in
accordance with a fee schedule agreed upon from time to time) for all services
rendered by it hereunder (which
43
compensation shall not (to the extent permitted by law) be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee (in accordance with a fee schedule agreed
upon from time to time) upon its request and, if required by the Company,
submission of reasonable documentation for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee or any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, measured or determined by
the income of the Trustee), incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (c) of
this Section 7.06, within a reasonable amount of time after a Trust Officer of
the Trustee actually becomes aware of such claim or liability. To secure the
Company's payment obligations in this Section 7.06, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee.
The Company's payment obligations pursuant to this Section 7.06 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(3) or (4), the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 7.07. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.07. The Holders of a majority in aggregate Principal Amount of the Securities
at the time outstanding may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee (subject to the consent of the Company, such
consent not to be unreasonably withheld). The Company shall remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.09;
(2) the Trustee is adjudged bankrupt or insolvent;
44
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint, by resolution of
its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.06.
If a successor ▇▇▇▇▇▇▇ does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.09, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 7.08. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.09. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.
SECTION 7.10. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
45
SECTION 7.11. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES. When (i) the Company
delivers to the Trustee all outstanding Securities (other than Securities
replaced pursuant to Section 2.07) for cancellation or (ii) all outstanding
Securities have become due and payable and the Company deposits with the Trustee
cash or, if expressly permitted by the terms hereof, securities sufficient to
pay at Stated Maturity the Principal Amount of all outstanding Securities (other
than Securities replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company (including, without
limitation, sums payable by delivery of shares of Common Stock pursuant to
Section 3.08), then this Indenture shall, subject to Section 7.06, cease to be
of further effect. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02. REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company upon written request any money or securities held by
them for the payment of any amount with respect to the Securities that remains
unclaimed for two years; PROVIDED, HOWEVER, that at the Company's written
request, the Trustee or such Paying Agent, before being required to make any
such return, shall, at the expense of the Company, cause to be published once in
THE WALL STREET JOURNAL or another daily newspaper of national circulation or
mail to each such Holder notice that such money or securities remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed money or securities then remaining
will be returned to the Company. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person,
and the Trustee and the Paying Agent shall have no further liability with
respect to such money or securities for that period commencing after the return
thereof.
46
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
PROVIDED, HOWEVER, that such amendment does not materially adversely affect
the rights of any Securityholder;
(2) to comply with Article 5 or Section 10.14;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities so long as such uncertificated Securities
are in registered form for purposes of the Internal Revenue Code of 1986,
as amended;
(4) to make any change that does not adversely affect the rights of
any Securityholder;
(5) to add to the covenants or obligations of the Company hereunder,
for the benefit of the Securityholders, or to surrender any right, power or
option herein conferred upon the Company; or
(6) to make any change to comply with the TIA.
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 Securities
at the time outstanding, the Company and the Trustee may amend this Indenture or
the Securities. However, without the consent of each Securityholder affected,
an amendment or supplement to this Indenture or the Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with
Original Issue Discount, reduce the rate of interest referred to in
paragraph 1 of the Securities or extend the time for payment of accrued
Original Issue Discount or interest, if any, on any Security;
47
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
(4) reduce the amount of cash payable in respect of conversion upon
the Company's election to pay cash with respect thereto, the Redemption
Price, Purchase Price or Change in Control Purchase Price of any Security
or extend the date on which the Purchase Price or Change in Control
Purchase Price of any Security is payable;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Section 6.04 or this Section 9.02, except to
increase any percentage referred to therein, or make any change in Section
6.07;
(7) make any change that adversely affects the right to convert any
Security (including the right to receive cash in lieu of Common Stock
except as set forth in Section 9.01(4));
(8) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture (including the right to receive cash if the Company has
elected to pay cash upon such purchase);
(9) make any change to the provisions of this Indenture relating to
the purchase of Securities at the option of the Holder pursuant to Section
3.08 or 3.09 which change would result in a violation of applicable federal
or state securities laws (including positions of the SEC under applicable
no-action letters), whether as a result of the exercise or performance of
any rights or obligations under such provisions or otherwise; or
(10) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Securities.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
48
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver becomes effective, a consent to it or any other
action by a Holder of a Security hereunder is a continuing consent by the Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same obligation as the consenting Holder's Security, even if
notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as
to such Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, waiver or action becomes
effective. After an amendment, waiver or action becomes effective, it shall
bind every Securityholder, except as provided in Section 9.02.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment 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 Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
CONVERSION
SECTION 10.01. CONVERSION PRIVILEGE. A Holder of a Security may convert
such Security into Common Stock at any time during the period stated in
paragraph 8 of the Securities. The number of shares of Common Stock issuable
upon conversion of a Security per $1,000 of
49
Principal Amount thereof (the "CONVERSION RATE") shall be that set forth in
paragraph 8 in the Securities, subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of a Security if the
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
"AVERAGE SALE PRICE" means the average of the Sale Prices of the Common
Stock for the shorter of
(i) 30 consecutive Trading Days ending on the last full Trading Day
prior to the Time of Determination with respect to the rights,
options, warrants or distribution in respect of which the Average Sale
Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, options or warrants
or (b) the distribution, in each case, in respect of which the Average
Sale Price is being calculated and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to
the rights, warrants or distribution in respect of which the Average
Sale Price is being calculated, or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance
of rights, warrants, or options or (b) distribution, in each case, for
which an adjustment is required by the provisions of Section 10.06(4),
10.07 or 10.08 and (y) proceeding through the last full Trading Day
prior to the Time of Determination with respect to the rights,
warrants, or options or distribution in respect of which the Average
Sale Price is being calculated.
If the Ex-Dividend Time (or in the case of a subdivision, combination or
reclassification, the effective date with respect thereto) with respect to a
dividend, subdivision, combination or reclassification to which Section
10.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such dividend,
subdivision, combination or reclassification on the Sale Price of the Common
Stock during such period.
"TIME OF DETERMINATION" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants, or options
or a distribution, in each case, to which Sections 10.07 and 10.08 apply and
(ii) the time ("EX-DIVIDEND TIME") immediately prior to the commencement of
"ex-dividend" trading for such rights, options, warrants or distribution
50
on the New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock is then listed or quoted.
SECTION 10.02. CONVERSION PROCEDURE. To convert a Security a Holder must
satisfy the requirements in paragraph 8 of the Securities. The date on which
the Holder satisfies all those requirements is the conversion date (the
"CONVERSION DATE"). The Company shall deliver to the Holder no later than the
seventh Business Day following the Conversion Date, through the Conversion
Agent, a certificate for the number of full shares of Common Stock issuable upon
the conversion and cash in lieu of any fractional share determined pursuant to
Section 10.03.
The person in whose name the certificate is registered shall be treated as
a stockholder of record on and after the Conversion Date; PROVIDED, HOWEVER,
that no surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; PROVIDED, FURTHER, that such conversion shall be
at the Conversion Rate in effect on the date that such Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be
a Holder of such Security.
Holders may surrender a Security for conversion by means of book entry
delivery in accordance with paragraph 8 of the Securities and the regulations of
the applicable book entry facility.
No payment or adjustment will be made for dividends on any Common Stock
except as provided in this Article 10. On conversion of a Security, that
portion of accrued Original Issue Discount attributable to the period from the
Issue Date to the Conversion Date with respect to the converted Security shall
not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Security being converted pursuant to the provisions hereof; and
the fair market value of such shares of Common Stock (together with any such
cash payment in lieu of any fractional shares of Common Stock) shall be treated
as issued, to the extent thereof, first in exchange for Original Issue Discount
accrued through the Conversion Date, and the balance, if any, of such fair
market value of such shares of Common Stock (and any such cash payment) shall be
treated as issued in exchange for the Issue Price of the Security being
converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the number
of shares of Common Stock issuable upon the conversion shall be computed based
on the total Principal
51
Amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where the Conversion Agent is located, the Security may be surrendered
to such Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 10.03. FRACTIONAL SHARES. The Company will not issue a fractional
share of Common Stock upon conversion of a Security. Instead, the Company will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share shall be determined to the nearest 1/1,000th
of a share by multiplying the Sale Price, on the last Trading Day prior to the
Conversion Date, of a full share by the fractional amount and rounding the
product to the nearest whole cent.
SECTION 10.04. TAXES ON CONVERSION. If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of shares of Common Stock upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may refuse
to deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due, as set forth in an Officers'
Certificate, because the shares are to be issued in a name other than the
Holder's name. Nothing herein shall preclude any tax withholding required by
law or regulations.
SECTION 10.05. COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Securities for shares of
Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on each national securities exchange or in the
over-the-counter market or such other market on which the Common Stock is then
listed or quoted.
52
SECTION 10.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If, after the
Issue Date, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or rights, warrants or
options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of Capital
Stock of the Company which such Holder would have owned immediately following
such action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares or other units of two or more classes or series of
Capital Stock of the Company, the Conversion Rate shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any such class
or series of Capital Stock as is contemplated by this Article 10 with respect to
the Common Stock, on terms comparable to those applicable to Common Stock in
this Article 10.
SECTION 10.07. ADJUSTMENT FOR RIGHTS ISSUE. If, after the Issue Date, the
Company distributes any rights, warrants or options to all holders of its Common
Stock entitling them, for a period expiring within 60 days after the record date
for such distribution, to purchase shares of Common Stock at a price per share
less than the Sale Price as of the Time of Determination, the Conversion Rate
shall be adjusted in accordance with the formula:
53
(0 + N)
-----------
R' = R x 0 + (N X P)
-------
M
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
0 = the number of shares of Common Stock outstanding on the record date
for the distribution.
N = the number of additional shares of Common Stock offered pursuant to
the distribution.
P = the offering price per share of such additional shares.
M = the Average Sale Price, MINUS, in the case of (i) a distribution to
which Section 10.06(4) applies or (ii) a distribution to which Section
10.08 applies, for which, in each case, (x) the record date shall
occur on or before the record date for the distribution to which this
Section 10.07 applies and (y) the Ex-Dividend Time shall occur on or
after the date of the Time of Determination for the distribution to
which this Section 10.07 applies, the fair market value (on the record
date for the distribution to which this Section 10.07 applies) of:
(1) the Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section
10.06(4) distribution, and
(2) the assets of the Company or debt securities or
any rights, warrants or options to purchase securities of
the Company distributed in respect of each share of Common
Stock in such Section 10.08 distribution.
The Board of Directors shall determine fair market values for the purposes of
this Section 10.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights,
warrants or options to which this Section 10.07 applies.
54
No adjustment shall be made under this Section 10.07 if the application
of the formula stated above in this Section 10.07 would result in value of R'
that is equal to or less than the value of R.
SECTION 10.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after the Issue
Date, the Company distributes to all holders of its Common Stock any of its
assets or debt securities or any rights, warrants or options to purchase
securities of the Company (including securities or cash, but excluding (x)
distributions of Capital Stock referred to in Section 10.06 and distributions
of rights, warrants or options referred to in Section 10.07 and (y) cash
dividends or other cash distributions that are paid out of consolidated
current net income or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends (as defined below)), the Conversion Rate shall
be adjusted, subject to the provisions of the last paragraph of this Section
10.08, in accordance with the formula:
M
---
R' = R x M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, MINUS, in the case of a distribution to which
Section 10.06(4) applies for which (i) the record date shall occur on
or before the record date for the distribution to which this Section
10.08 applies and (ii) the Ex-Dividend Time shall occur on or after
the date of the Time of Determination for the distribution to which
this Section 10.08 applies, the fair market value (on the record date
for the distribution to which this Section 10.08 applies) of any
Capital Stock of the Company distributed in respect of each share of
Common Stock in such Section 10.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 10.08 applies) of the assets, securities, rights,
warrants or options to be distributed in respect of each share of
Common Stock in the distribution to which this Section 10.08 is being
applied (including, in the case of cash dividends or other cash
distributions giving rise to an adjustment, all such cash distributed
concurrently).
The Board of Directors shall determine fair market values for the purpose of
this Section 10.08.
55
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 10.08 applies.
For purposes of this Section 10.08, the term "EXTRAORDINARY CASH
DIVIDEND" shall mean any cash dividend with respect to the Common Stock the
amount of which, together with the aggregate amount of cash dividends on the
Common Stock to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentages set
forth in items (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the eighty-five (85)
consecutive day period ending on the date prior to the Ex-Dividend
Time with respect to the cash dividend to which this provision is
being applied equals or exceeds 12.5% of the average of the Sale
Prices during the period beginning on the date after the first such
Ex-Dividend Time in such period and ending on the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied (except that if no other cash dividend has
had an Ex-Dividend Time occurring in such period, the period for
calculating the average of the Sale Prices shall be the period
commencing 85 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being
applied), such cash dividend together with each other cash dividend
with an Ex-Dividend Time occurring in such 85-day period shall be
deemed to be an Extraordinary Cash Dividend and for purposes of
applying the formula set forth above in this Section 10.08, the value
of "F" shall be equal to (w) the aggregate amount of such cash
dividend together with the amounts of the other cash dividends with
Ex-Dividend Times occurring in such period MINUS (x) the aggregate
amount of such other cash dividends with Ex-Dividend Times occurring
in such period for which a prior adjustment in the Conversion Rate was
previously made under this Section 10.08.
(ii) If upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend, together with the amounts of all cash dividends on the
Common Stock with Ex-Dividend Times occurring in the 365-consecutive-
day period ending on the date prior to the Ex-Dividend Time with
respect to the cash dividend to which this provision is being applied
equals or exceeds 25% of the average of the Sale Prices during the
period beginning on the date after the first such Ex-Dividend Time in
such period and ending on the date prior to the Ex-Dividend Time with
respect to the cash dividend to which this provision is being applied
(except that if no other cash
56
dividend has had an Ex-Dividend Time occurring in such period, the
period for calculating the average of the Sale Prices shall be the
period commencing 365 days prior to the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied), such cash dividend together with each
other cash dividend with an Ex-Dividend Time occurring in such
365-day period shall be deemed to be an Extraordinary Cash Dividend
and for purposes of applying the formula set forth above in this
Section 10.08, the value of "F" shall be equal to (y) the aggregate
amount of such cash dividend together with amounts of the other
cash dividends with Ex-Dividend Times occurring in such period
MINUS (z) the aggregate amount of such other cash dividends with
Ex-Dividend Times occurring in such period for which a prior
adjustment in the Conversion Rate was previously made under this
Section 10.08.
In making the determinations required by items (i) and (ii) above, the
amount of cash dividends paid on a per share basis and the average of the
Sale Prices, in each case during the period specified in items (i) and (ii)
above, as applicable, shall be appropriately adjusted to reflect the
occurrence during such period of any event described in Section 10.06
In the event that, with respect to any distribution to which this
Section 10.08 would otherwise apply, the difference "M-F" as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the
adjustment provided by this Section 10.08 shall not be made and in lieu
thereof the provisions of Section 10.14 shall apply to such distribution.
SECTION 10.09. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase
or decrease of at least 1% (E.G., if the Conversion Rate is 4, an increase or
decrease of .04 (1% of 4)) in the Conversion Rate. Any adjustments that are
not made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 10 shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be, with one-half of
a cent and 5/10,000ths of a share being rounded upwards.
SECTION 10.10. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made
for a transaction referred to in Section 10.06, 10.07, 10.08 or 10.14 if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
57
No adjustment need be made for a change in the par value or no par value
of the Common Stock.
No adjustment need be made unless such adjustment, together with any
other adjustments similarly deferred equals at least 1% of the then current
Conversion Rate.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 10.08 or 10.14, no adjustment need be made thereafter as
to the cash. Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this Indenture, no
adjustment shall be made in the Conversion Rate to the extent, but only to
the extent, such adjustment results in the following quotient being less than
the par value of the Common Stock: (i) the Issue Price plus accrued Original
Issue Discount as of the date such adjustment would otherwise be effective
divided by (ii) the Conversion Rate as so adjusted.
SECTION 10.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall file with the Trustee and the Conversion Agent a
notice of such adjustment and a certificate from the Company's independent
public accountants briefly stating the facts requiring the adjustment and the
manner of computing it. The Conversion Agent will promptly mail such notice
to Securityholders at the Company's expense. The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect
to any such certificate except to exhibit the same to any Holder desiring
inspection thereof.
SECTION 10.12. VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount and for any period of time
(PROVIDED, that such period is not less than 20 Business Days). Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and
file with the Trustee and the Conversion Agent a notice of the increase. The
Company shall mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Sections 10.06, 10.07
or 10.08.
SECTION 10.13. NOTICE OF CERTAIN TRANSACTIONS. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 10.06, 10.07 or 10.08 (unless no
adjustment is to occur pursuant to Section 10.10); or
58
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and
the Conversion Agent a notice stating the proposed record date for a dividend
or distribution of the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at
least 15 days before such date. Failure to file or mail the notice or any
defect in it shall not affect the validity of the transaction.
SECTION 10.14. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS. If
the Company is a party to a transaction subject to Section 5.01 (other than a
sale of all or substantially all of the assets of the Company in a
transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or
any other person) or a merger or binding share exchange which reclassifies or
changes its outstanding Common Stock, the person obligated to deliver
securities, cash or other assets upon conversion of Securities shall enter
into a supplemental indenture. If the issuer of securities deliverable upon
conversion of Securities is an Affiliate of the successor Company, that
issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming
(to the extent applicable) that such Holder (i) was not a constituent person
or an Affiliate of a constituent person to such transaction; (ii) made no
election with respect thereto; and (iii) was treated alike with the plurality
of non-electing Holders. The supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Article 10. The successor Company shall
mail to Securityholders a notice briefly describing the supplemental
indenture.
If this Section applies, neither Section 10.06 nor 10.07 applies.
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options
to purchase securities of the Company that, but for the provisions of the
last paragraph of Section 10.08, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 10.08, then, from
and after the record date for determining the holders of Common Stock
entitled to receive the distribution, a Holder of a Security that converts
such Security in accordance with the provisions
59
of this Indenture shall upon such conversion be entitled to receive, in
addition to the shares of Common Stock into which the Security is
convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such
Holder had converted the Security immediately prior to the record date for
determining the holders of Common Stock entitled to receive the distribution.
SECTION 10.15. COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to this Article 10 is
conclusive.
SECTION 10.16. TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no
duty to determine when an adjustment under this Article 10 should be made,
how it should be made or what it should be. The Trustee has no duty to
determine whether a supplemental indenture under Section 10.14 need be
entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article 10. Each Conversion Agent
(other than the Company or an Affiliate of the Company) shall have the same
protection under this Section 10.16 as the Trustee.
SECTION 10.17. SIMULTANEOUS ADJUSTMENTS. If this Article 10 requires
adjustments to the Conversion Rate under more than one of Sections 10.06(4),
10.07 or 10.08, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.06, second, the
provisions of Section 10.08 and, third, the provisions of Section 10.07.
SECTION 10.18. SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 10, any subsequent event requiring an
adjustment under this Article 10 shall cause an adjustment to the Conversion
Rate as so adjusted.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
60
SECTION 11.02. NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Company:
Jacor Communications, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
The Bank of New York
Corporate Trust Trustee Administration
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed by
first-class mail to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent,
Conversion Agent or co-registrar.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
61
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Trustee may require the Company to furnish
either or both of the following:
(1) an Officers' Certificate stating that, in the opinion of the
principal signer thereof, 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 11.05. 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 the principal signer of 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 the principal signer, he or
she 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 11.06. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting
of the Securityholders. The Registrar, Conversion Agent and the Paying Agent
may make reasonable rules for their functions.
SECTION 11.08. LEGAL HOLIDAY. 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 to the extent applicable no Original Issue
Discount or interest, if any, shall accrue for the intervening period.
62
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 11.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 11.11. SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to
prove this Indenture.
63
SIGNATURES
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.
JACOR COMMUNICATIONS, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
64
EXHIBIT A
[FORM OF FACE OF LYON]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH
$1,000 OF PRINCIPAL AMOUNT OF THIS SECURITY IS $608.94. THE ISSUE DATE IS
FEBRUARY 9, 1998, AND THE YIELD TO STATED MATURITY IS 4.75% PER ANNUM (COMPUTED
ON A SEMIANNUAL BOND EQUIVALENT BASIS).
A-1
JACOR COMMUNICATIONS, INC.
LIQUID YIELD OPTION-TM- NOTE DUE 2018
(ZERO COUPON -- SENIOR)
No.
Issue Date: CUSIP No. 469858 AB 0
Issue Price: $391.06
Original Issue Discount: $608.94
(for each $1,000 Principal amount)
Jacor Communications, Inc., a Delaware corporation, promises to pay to
_______, or registered assigns, the Principal Amount of __________________
Dollars on February 9, 2018.
This Security shall not bear interest except as specified on the other side
of this Security. Original Issue Discount will accrue as specified on the other
side of this Security. This Security is convertible as specified on the other
side of this Security. All capitalized terms used herein without definition
shall have the respective meanings assigned thereto in the Indenture referred to
on the other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
JACOR COMMUNICATIONS, INC.
By:
-----------------------
Title:
ATTEST:
-------------------------------
----------------------
-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK
as Trustee
This Security is one of the Securities
referred to in the within-mentioned
Indenture.
By: ----------------------------------
Dated:
----------------------
Authorized Signatory
A-3
[FORM OF REVERSE SIDE OF LYON]
LIQUID YIELD OPTION-TM- NOTE DUE 2018
(ZERO COUPON -- SENIOR)
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest therein.(1)
1. INTEREST
This Security shall not bear interest except as specified in this
paragraph. If the Principal Amount hereof or any portion of such Principal
Amount is not paid when due (whether upon acceleration pursuant to Section 6.02
of the Indenture, upon the date set for payment of the Redemption Price pursuant
to paragraph 5 hereof, upon the date set for payment of a Purchase Price or
Change in Control Purchase Price pursuant to paragraph 6 hereof or upon the
Stated Maturity of this Security) or if shares of Common Stock (or cash in lieu
of fractional shares) in respect of a conversion of this Security in accordance
with the terms of Article 10 of the Indenture is not delivered when due, then in
each such case the overdue amount shall bear interest at the rate of 4.75% per
annum, compounded semiannually (to the extent that the payment of such interest
shall be legally enforceable), which interest shall accrue from the date such
overdue amount was 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.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security remains
outstanding, shall accrue at 4.75% per annum, on a semiannual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security, and cease to accrue on the earlier of (a) the date
on which the Principal Amount at Stated Maturity hereof or any portion of such
-------------------------
(1) This paragraph should only be added if the Security is issued in global
form.
-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-4
Principal Amount at Stated Maturity becomes due and payable and (b) any
Redemption Date, Conversion Date, Change in Control Purchase Date, Purchase Date
or other date on which such Original Issue Discount shall cease to accrue in
accordance with Section 2.08 of the Indenture.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, Jacor Communications,
Inc. (the "Company") will make payments in respect of the Securities to the
persons who are registered Holders of Securities at the close of business on the
Business Day preceding the Redemption Date or Stated Maturity, as the case may
be, or at the close of business on a Purchase Date, Change in Control Purchase
Date or Conversion Date, as the case may be. Holders must surrender Securities
to a Paying Agent to collect such payments in respect of the Securities. The
Company will pay cash amounts in money of The United States of America that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may make such cash payments in respect of a certificated
Security, if applicable, by check payable in such money; provided that payment
by wire transfer of immediately available funds will be required with respect to
payments in respect of all Global Securities and all other Securities the
Holders of which shall have provided written wire transfer instructions to the
Company or the Paying Agent five days before the payment date.
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking corporation, as trustee
(the "Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar, upon notice to the Trustee and the Holders. The Company or any of
its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture, dated as of February
9, 1998 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, and, as in effect on the date of the
Indenture (the "TIA"), except as provided in Section 9.03 of the Indenture.
Capitalized terms used herein or on the face hereof and not defined herein have
the meanings ascribed thereto in the Indenture. The Securities are subject to
all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
-------------------------
(1) This paragraph should only be added if the Security is issued in global
form.
-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-5
The Securities are general unsecured obligations of the Company limited to
the aggregate Principal Amount at Stated Maturity specified in Section 2.02 of
the Indenture (subject to Section 2.07 of the Indenture). The Indenture does
not limit other indebtedness of the Company, secured or unsecured.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, PROVIDED, that the
Securities are not redeemable prior to February 9, 2003.
The table below shows the Redemption Prices of a Security per $1,000
Principal Amount at Stated Maturity on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated to
each such date. The Redemption Price of a Security redeemed between such dates
would include an additional amount reflecting the additional Original Issue
Discount accrued from and including the next preceding date in the table through
the actual Redemption Date.
(2)
(1) Accrued Origi- (3) Redemp-
LYON nal Issue Dis- tion Price (1)
Redemption Date Issue Price count at 4.75% + (2)
----------- -------------- --------------
February 9, 2003 . . . . . . . . . . . . . . . . . . $391.06 $103.46 $ 494.52
February 9, 2004 . . . . . . . . . . . . . . . . . . 391.06 127.23 518.29
February 9, 2005 . . . . . . . . . . . . . . . . . . 391.06 152.14 543.20
February 9, 2006 . . . . . . . . . . . . . . . . . . 391.06 178.25 569.31
February 9, 2007 . . . . . . . . . . . . . . . . . . 391.06 205.61 596.67
February 9, 2008 . . . . . . . . . . . . . . . . . . 391.06 234.29 625.35
February 9, 2009 . . . . . . . . . . . . . . . . . . 391.06 264.34 655.40
February 9, 2010 . . . . . . . . . . . . . . . . . . 391.06 295.85 686.91
February 9, 2011 . . . . . . . . . . . . . . . . . . 391.06 328.86 719.92
February 9, 2012 . . . . . . . . . . . . . . . . . . 391.06 363.46 754.52
February 9, 2013 . . . . . . . . . . . . . . . . . . 391.06 399.73 790.79
February 9, 2014 . . . . . . . . . . . . . . . . . . 391.06 437.74 828.80
February 9, 2015 . . . . . . . . . . . . . . . . . . 391.06 477.57 868.63
February 9, 2016 . . . . . . . . . . . . . . . . . . 391.06 519.32 910.38
February 9, 2017 . . . . . . . . . . . . . . . . . . 391.06 563.08 954.14
At maturity . . . . . . . . . . . . . . . . . . . . . 391.06 608.94 1,000.00
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set
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forth in the Indenture, at any time from the opening of business on the date
that is 20 Business Days prior to such Purchase Date until the close of
business on such Purchase Date and upon delivery of the Securities to the
Paying Agent by the Holder as set forth in the Indenture. Such Purchase
Price (equal to the Issue Price plus accrued Original Issue Discount through
such Purchase Date) may be paid, at the option of the Company, in cash or by
the issuance and delivery of shares of Common Stock of the Company, or in any
combination thereof.
PURCHASE DATE PURCHASE PRICE
------------- --------------
February 9, 2003 $494.52
February 9, 2008 $625.35
February 9, 2013 $790.79
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs on or prior to February 9, 2003, the Company shall, at the option
of the Holder, purchase all Securities for which a Change in Control Purchase
Notice shall have been delivered as provided in the Indenture and not withdrawn,
on the date that is 35 Business Days after the occurrence of such Change in
Control, for a Change in Control Purchase Price equal to the Issue Price plus
accrued Original Issue Discount through the Change in Control Purchase Date,
which Change in Control Purchase Price shall be paid in cash.
Holders have the right to withdraw any Purchase Notice or Change in Control
Purchase Notice, as the case may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the Indenture prior to
the close of business on the Purchase Date or Change in Control Purchase Date,
as the case may be.
If cash sufficient to pay the Purchase Price or Change in Control Purchase
Price of all Securities or portions thereof to be purchased as of the Purchase
Date or the Change in Control Purchase Date, as the case may be, is deposited
with the Paying Agent on the Business Day following the Purchase Date or the
Change in Control Purchase Date, as the case may be, Original Issue Discount
ceases to accrue on such Securities (or portions thereof) on and after such
date, and the Holders thereof shall have no other rights as such (other than the
right to receive the Purchase Price or Change in Control Purchase Price, as the
case may be, upon surrender of such Security).
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 Securities to be redeemed at
the Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (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 date Original Issue Discount ceases to accrue on such Securities
or portions thereof. Securities 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.
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8. CONVERSION
Subject to the next two succeeding sentences, a Holder of a Security may
convert it into Common Stock of the Company at any time before the close of
business on February 9, 2018; PROVIDED, HOWEVER, that if a Security is called
for redemption, the Holder may convert it at any time before the close of
business on the Redemption Date. The number of shares of Common Stock to be
delivered upon conversion of a Security into Common Stock per $1,000 of
Principal Amount shall be equal to the Conversion Rate. A Security in respect
of which a Holder has delivered a Purchase Notice or Change in Control Purchase
Notice exercising the option of such Holder to require the Company to purchase
such Security may be converted only if the notice of exercise is withdrawn in
accordance with the terms of the Indenture.
The initial Conversion Rate is 6.245 shares of Common Stock per $1,000
Principal Amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
To convert a Security a Holder must (i) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture), (ii) furnish
appropriate endorsements and transfer documents if required by the Conversion
Agent, the Company or the Trustee and (iii) pay any transfer or similar tax, if
required.
If the Holder converts more than one Security at the same time, the number
of shares of Common Stock issuable upon the conversion shall be based on the
total Principal Amount of the Securities converted.
A Holder may convert a portion of a Security if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. No payment or adjustment
will be made for dividends on the Common Stock except as provided in the
Indenture. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date to the Conversion Date
with respect to the converted Security shall not be cancelled, extinguished or
forfeited, but rather shall be deemed paid in full to the Holder thereof through
the delivery of the Common Stock in exchange for the Security being converted
pursuant to the terms hereof; and the fair market value of such Common Stock
(together with any cash payment in lieu of fractional shares of Common Stock)
shall be treated as issued, to the extent thereof, first in exchange for
Original Issue Discount accrued through the Conversion Date, and the balance, if
any, of such fair market value of such shares of Common Stock (and any such cash
payment) shall be treated as issued in exchange for the Issue Price of the
Security being converted pursuant to the provisions hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price
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at the Time of Determination; and distributions to such holders of assets or
debt securities of the Company or certain rights to purchase securities of
the Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Securityholders may participate in the transaction
or in certain other cases. The Company from time to time may voluntarily
increase the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange of the type specified in the Indenture, or certain transfers of all or
substantially all of its assets to another person, or in certain other
circumstances described in the Indenture, the right to convert a Security into
Common Stock may be changed into a right to convert it into securities, cash or
other assets of the Company or another person.
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities 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 Securities at an amount not less than the
Redemption Price, together with accrued interest if any, to the Redemption Date,
by one or more investment bankers or other purchasers who may agree with the
Company to purchase such Securities from the Holders and to make payment for
such Securities to the Trustee in trust for such Holders.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities 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 Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Change in Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
11. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
12. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, PROVIDED,
HOWEVER, that at the Company's request, the Trustee or such Paying Agent, before
being required to make any such return, shall at the
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expense of the Company cause to be published once in THE WALL STREET JOURNAL
or another newspaper of national circulation or mail to each such Holder
notice that such money or securities remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed money or securities then remaining will
be returned to the Company. After return to the Company, Holders entitled to
the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person, and the Trustee and the Paying Agent shall have no further liability
with respect to such money or securities for that period commencing after the
return thereof.
13. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate Principal Amount of the Securities at the time
outstanding and (ii) certain defaults or noncompliance with certain provisions
may be waived with the written consent of the Holders of a majority in aggregate
Principal Amount of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 or Section 10.14 of the Indenture or to make any change that does not
adversely affect the rights of any Securityholder.
14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in payment of the
Principal Amount, Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase Price or Change in Control Purchase Price, as the case may be,
in respect of the Securities when the same becomes due and payable; (ii) failure
either to deliver shares of Common Stock (or cash in lieu of fractional shares)
in accordance with the terms of the Indenture when such Common Stock (or cash in
lieu of fractional shares) is required to be delivered following conversion of a
Security and such failure is not remedied for a period of 10 days; (iii) failure
by the Company to comply with other agreements in the Indenture or the
Securities, subject to notice and lapse of time; (iv) default (A) in the payment
of any principal on any debt for borrowed money of the Company (excluding any
non-recourse debt), in an aggregate principal amount in excess of $10 million
when due at its final maturity after giving effect to any applicable grace
period and the holder thereof shall have taken affirmative action to enforce the
payment thereof, or (B) in the performance of any term or provision of any debt
for borrowed money of the Company (excluding any non-recourse debt) in an
aggregate principal amount in excess of $10 million that results in such debt
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, unless, in the case of either clause (A) or
(B) above, (x) such acceleration or action to enforce payment, as the case may
be, has been rescinded or annulled, (y) such debt has been discharged or (z) a
sum sufficient to discharge in full such debt has been deposited in trust by or
on behalf of the Company, in each case, within a period of 10 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the
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Securities, a written notice specifying such default or defaults and stating
that such notice is a "Notice of Default" hereunder; or (v) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing,
the Trustee, or the Holders of at least 25% in aggregate Principal Amount of
the Securities at the time outstanding, may declare all the Securities to be
due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default that will result in the Securities becoming due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) above) if it determines that withholding notice is in their interests.
15. TRUSTEE DEALINGS WITH THE COMPANY
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 Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Certificate of Authentication on the other side of
this Security.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder 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) and CUST (=custodian), and UNIF TRANS MIN ACT (=Uniform
Transfers to Minors Act).
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19. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
-----------------------
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Jacor Communications, Inc.
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▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill To convert this Security into
in the form below: Common Stock of the Company,
check the box:
I or we assign and transfer / /
this Security to
-------------
(Insert assignee's soc.
sec. or tax ID no.) To convert only part of this
Security, state the Principal
------------------------------ Amount to be converted (which must be
$1,000 or an integral multiple of $1,000):
------------------------------
/$/
------------------------------
------------------------------
(Print or type assignee's
name, address and zip code) If you want the stock
certificate made out in
and irrevocably appoint another person's name, fill
_______________________ agent in the form below:
to transfer this Security on
the books of the Company. The / /
agent may substitute another
to act for him.
(Insert person's soc.
EXCHANGE FORM sec. or tax ID no.)
To exchange its beneficial ------------------------------
interest in Global Security
held by the Depositary for a ------------------------------
Security or Securities in
definitive, registered form of ------------------------------
authorized denominations and an
aggregate principal amount equal ------------------------------
to its beneficial interest in (Print or type person's name,
such Global Security, a Holder address and zip code)
should check the box
/ /
-----------------------------------------------------------------
Date: Your Signature: *
----------------- ------------------------
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES***
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Amount
decrease in increase in at Maturity Signature of
Principal Amount Principal Amount of this Global authorized signatory of
at Maturity at Maturity of this Security following Trustee or
Date of of this Global Global such decrease (or Securities
Exchange Security Security increase) Custodian
---------------------------------------------------------------------------------------------------------------------------------
--------------------
*** This schedule should only be added if the Security is issued in global
form.
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