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EXHIBIT 4.1
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▇▇▇▇-▇▇▇▇▇ CORPORATION
TO
CITIBANK, N.A.,
AS TRUSTEE
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FIFTH SUPPLEMENTAL INDENTURE
DATED FEBRUARY __, 2000
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF AUGUST 1, 1982
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THIS FIFTH SUPPLEMENTAL INDENTURE, dated February __, 2000
(hereinafter called the "Supplemental Indenture"), is between ▇▇▇▇-▇▇▇▇▇
CORPORATION, a Delaware corporation (hereinafter called the "Corporation"), and
CITIBANK, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee under the Indenture
referred to below (hereinafter called the "Trustee").
RECITALS
The Company and the Trustee are parties to an Indenture, dated
as of August 1, 1982, as amended (the "Indenture"), relating to the issuance
from time to time by the Company of its Securities on terms to be specified at
the time of issuance. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Indenture.
The Company has duly authorized the creation of a series of
its Securities denominated its "___% Convertible Subordinated Debentures due
2010" (such Securities being referred to herein as the "Debentures").
The Company has duly authorized the execution and delivery of
this Supplemental Indenture in order to provide for the issuance of the
Debentures.
The Company has requested the Trustee and the Trustee has
agreed to join with it in the execution and delivery of this Supplemental
Indenture.
Section 901(e) of the Indenture provides that the Company,
acting pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into an indenture supplemental to the Indenture to
establish the form and terms of Securities of any series as permitted by
Sections 201 and 301 of the Indenture.
The Company has determined that this Supplemental Indenture
complies with Section 901(f) and does not require the consent of any Holders of
Securities. On the basis of the foregoing, the Trustee has determined that this
Supplemental Indenture is in form satisfactory to it.
The Company has furnished the Trustee with an Officers'
Certificate and an Opinion of Counsel complying with the requirements of Section
905 of the Indenture, stating that the execution of this Supplemental Indenture
is authorized or permitted by the Indenture, and has delivered to the Trustee a
Board Resolution authorizing the execution and delivery of this Supplemental
Indenture, together with such other documents as may have been required by
Section 303 of the Indenture.
All things necessary to make this Supplemental Indenture a
valid agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
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The entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture, and all things necessary have been done to make the
Debentures, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Supplemental Indenture a valid agreement of the Company, in
accordance with their and its terms.
NOW THEREFORE:
It is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE I
SECTION 1.01. Definitions.
For all purposes of the Indenture and this Supplemental
Indenture as they relate to the Debentures, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article;
(2) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to the Indenture and this Supplemental
Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(3) capitalized terms used but not defined herein are used as
they are defined in the Indenture.
"Change in Control" means:
(i) the acquisition by any Person (including any
syndicate or group deemed to be a "person" under Section 13(d)(3) of the
Exchange Act as in effect on the date of the original execution of this
Supplemental Indenture) of beneficial ownership (as determined in accordance
with Rule 13d-3 promulgated by the Commission under the Exchange Act), directly
or indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Company entitling such
Person to exercise 50% or more of the total voting power of all shares of
capital stock of the Company entitled to vote generally in the elections of
directors (or persons holding a similar function), other than any such
acquisition by the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or any Subsidiary of the Company; or
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(ii) any consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another Person into the
Company, or any conveyance, sale, transfer, lease or other disposition of all or
substantially all of the assets of the Company to another Person (other than (a)
any such transaction (x) which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of capital stock of
the Company and (y) pursuant to which the holders of the Common Stock
immediately prior to such transaction have the entitlement to exercise, directly
or indirectly, 50% or more of the total voting power of all shares of capital
stock of the Company entitled to vote generally in the election of directors (or
persons holding a similar function) of the continuing or surviving Person
immediately after such transaction and (b) any merger which is effected solely
to change the jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of Common Stock
into solely shares of common stock of the surviving Person); provided, however,
that a Change in Control shall not be deemed to have occurred if (a) the Closing
Price per share of the Common Stock for any five Trading Days within the period
of 10 consecutive Trading Days ending immediately after the later of the Change
in Control or the public announcement of the Change in Control (in the case of a
Change in Control under clause (i) above) or the period of 10 consecutive
Trading Days ending immediately before the Change in Control (in the case of
Change in Control under clause (ii) above) shall equal or exceed 105% of the
Conversion Price of the Securities in effect on each such Trading Day or (b) at
least 90% of the consideration in the transaction or transactions constituting a
Change in Control consists of shares of common stock traded or to be traded
immediately following such Change in Control on a national securities exchange
or the Nasdaq National Market and, as a result of such transaction or
transactions, the Debentures become exercisable solely into such common stock
(and any rights attached thereto).
"Closing Price" of any security on any date of determination
means:
(1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such security on The New
York Stock Exchange on such date;
(2) if such security is not listed for trading on The New York
Stock Exchange on any such date, the closing sale price as reported in
the composite transactions for the principal U.S. securities exchange
on which such security is so listed;
(3) if such security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported by the
NASDAQ National Market;
(4) if such security is not so reported, the last quoted bid
price for such security in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
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(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of such security on such date
from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
"Common Stock" means the Company's common stock, par value
$1.00 per share, as it exists on the date of this Supplemental Indenture and any
shares of any class or classes of capital stock of the Company resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided however, that if any time
there shall be more than one such resulting class, the shares of each such class
then so issuable on conversion of Debentures shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the number of shares of all such classes
resulting from all such reclassifications.
"Conversion Agent" means any Person authorized by the Company
to convert the Debentures in accordance with Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred, created or assumed:
(a) all indebtedness of the Company for money borrowed
(including any indebtedness secured by a mortgage or other lien which
is given to secure all or part of the purchase price of property
subject thereto, whether given to the vendor of such property or to
another, or (ii) existing on property at the time of acquisition
thereof);
(b) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities;
(c) all lease obligations of the Company which are capitalized
on the books of the Company in accordance with generally accepted
accounting principles;
(d) all indebtedness of others of the kinds described in
either of the preceding clauses (a) or (b) and all lease obligations of
others of the kind described in the preceding clause (c) assumed by or
guaranteed in any manner by the Company or
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in effect guaranteed by the Company through an agreement to purchase,
contingent or otherwise;
(e) all obligations of the Company with respect to letters of
credit issued in connection with indebtedness of others of the kind
described in the preceding clauses (a) or (b) or leased obligations of
the kind described in the preceding clause (c); and
(f) all renewals, extensions or refundings of indebtedness of
the kinds described in any of the preceding clauses (a), (b) and (d),
all renewals or extensions of lease obligations of the kinds described
in either of the preceding clauses (c) and (d) and all renewals or
extensions of obligations with respect to letters of credit of the kind
described in the preceding clause (e);
unless, in the case of any particular indebtedness, lease, obligation, renewal,
extension or refunding, the instrument or lease creating or evidencing the same
or the assumption or guarantee of the same expressly provides that such
indebtedness, lease, obligation, renewal, extension or refunding is not superior
in right of payment to or is pari passu with the Debentures. Senior Debt shall
also not include any Debentures, any indebtedness or other obligations of the
Company to its Subsidiaries or the Company's 7.5% Convertible Subordinated
Debentures Due 2000 through 2014.
"Trading Day" means:
(1) if the applicable security is listed or admitted
for trading on The New York Stock Exchange or another national
security exchange, a day on which The New York Stock Exchange
or such other national security exchange is open for business;
(2) if the applicable security is quoted on the Nasdaq
National Market, a day on which trades may be made thereon; or
(3) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday
or Sunday or a day on which banking institutions in the State
of New York are authorized or obligated by law or executive
order to close.
Section 1.02. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 1.03. Successors and Assigns.
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All covenants and agreements in this Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.04. Separability.
In case any provision in this Supplemental Indenture or the
Debentures shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 1.05. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act of 1939, as
amended, such required provisions shall control.
Section 1.06. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, expressed or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, holders of Senior Debt and the Holders of the Debentures any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
Section 1.07. Application of Supplemental Indenture.
This Supplemental Indenture shall take effect on the date
hereof, and shall, except with respect to Section 1.09, apply only to the
Debentures. This Supplemental Indenture shall have no effect on any other
Securities, whether originally issued prior to the date hereof or thereafter. If
any provision of this Supplemental Indenture is inconsistent with any provision
of the Indenture, then, to the extent permitted by the Indenture, the provision
in this Supplemental Indenture shall control.
SECTION 1.08. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND THE DEBENTURES SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS
SUPPLEMENTAL INDENTURE AND EACH SUCH DEBENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 1.09. Amendments to Indenture.
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Section 301 of the Indenture is hereby amended by deleting the
word "and" at the end of clause (13), by renumbering clause (14) of Section 301
as clause (15), and by inserting a new clause (14) as follows:
(14) whether the Securities of the series will be
subordinated to any other series; and
Section 901 of the Indenture is hereby amended by substituting
";or" for the period at the end of clause (g) and by inserting a new clause (h)
as follows:
(h) to comply with the provisions of Section 4.04 and
5.11 of the Fifth Supplemental Indenture dated February __, 2000,
between the Company and the Trustee.
ARTICLE II
The Debentures
Section 2.01. Title and Terms.
There is hereby created under the Indenture a series of
Securities known and designated as the "__% Convertible Subordinated Debentures
due 2010" of the Company. The aggregate principal amount of Debentures that may
be authenticated and delivered under this Indenture is limited to $
million, except for Debentures authenticated and delivered upon reregistration
of, transfer of, or in exchange for, or in lieu of, other Debentures pursuant to
Sections 305, 306, 307, 904 and 1103 of the Indenture.
The Stated Maturity for payment of principal of the Debentures
shall be ________, 2010 and the Debentures shall bear interest (computed on the
basis of a 360-day year of twelve 30-day months) at the rate of __% of the
principal amount per annum, from _______, 2000 or the most recent Interest
Payment Date to which interest has been paid or duly provided for, until the
principal amount thereof is paid at Maturity. Interest on the Debentures shall
be payable semi-annually in arrears on __________, and __________ of each year,
commencing ___________, 2000 (each, an "Interest Payment Date"), to the Persons
in whose names the Debentures (or any Predecessor Securities) are registered at
the close of business on the _________________ and __________ immediately
preceding such Interest Payment Date. Except as provided in this paragraph, if a
Holder converts its Debentures into Common Stock on any day other than an
Interest Payment Date, such Holder shall receive no interest that has accrued on
such Debentures. A Holder who converts a Debenture after a Regular Record Date
for an interest payment but prior to the corresponding Interest Payment Date,
shall be entitled to receive on the Interest Payment Date interest accrued and
paid on such Debentures, notwithstanding the conversion of such Debentures prior
to such Interest Payment Date. However, at the time such Holder surrenders such
Debentures for conversion, such Holder must pay to the
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Company an amount equal to the interest that has accrued and will be paid on the
Interest Payment Date on the Debentures being converted. However, the preceding
sentence shall not apply to Debentures that are converted after being called by
the Company for redemption. In addition, if the Redemption Date is prior to a
Regular Record Date for an Interest Payment Date, and prior to such Redemption
Date such Holder chooses to convert such Holder's Debentures, such Holder will
receive on the date that has been fixed for redemption the amount of interest
such Holder would have received if such Holder had not converted its Debentures.
The Debentures shall be initially issued in the form of one
or more Global Securities and the U.S. Depositary for the Debentures shall be
The Depository Trust Company, New York, New York.
The Debentures shall not be subject to any sinking fund.
The Debentures shall be issuable in denominations of $1000 and
integral multiples thereof.
The Debentures shall not be issued as Original Issue Discount
Securities or subject to defeasance as provided in Article Fifteen of the
Indenture.
The form of Debentures attached hereto as Exhibit A is hereby
adopted, as a form of Securities of a series that consists of Debentures.
Certain terms of the Debentures are set forth in the form of the Debentures.
With respect to the Debentures only and for the benefit of
only the Holders thereof, the failure on the part of the Company to observe or
perform any of the covenants or agreements on the part of the Company in this
Fifth Supplemental Indenture not otherwise specified in Section 501 of the
Indenture shall be an additional Event of Default with respect to the Debentures
as if and, for all purposes under the Indenture, to the same extent as if the
same were specified in paragraph (d) of such Section 501 of the Indenture.
ARTICLE III
Redemption of Debentures
Section 3.01. Right to Redeem.
At any time on or after ________, 2005, the Company may redeem
some or all of the Debentures on at least 30 but not more than 60 days' notice
given in accordance with Section 1102 of the Indenture, at the following
Redemption Prices (expressed in percentages of the principal amount).
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During The Twelve Months Commencing Redemption Price
----------------------------------- ----------------
_________, 2005..................................... %
_________, 2006..................................... %
_________. 2007..................................... %
_________, 2008..................................... %
_________, 2009..................................... 100%
In addition, the Company shall pay interest on the Debentures
being redeemed. This Interest shall include interest accrued and unpaid to, but
excluding, the Redemption Date. If the Redemption Date is an Interest Payment
Date, the Company shall pay interest on the Debentures being redeemed to the
holder of record thereof on the next preceding Regular Record Date.
ARTICLE IV
Repurchase of Securities at the Option
of Holders upon a Change in Control
Section 4.01. Right to Require Repurchase.
In the event that a Change in Control shall occur, then each
Holder shall have the right, at the Holder's option, but subject to the
provisions of Section 4.02 and Section 4.03, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder's Debentures not theretofore called for redemption, or any
portion of the principal amount thereof that is equal to $1,000 or any integral
multiple of $1,000 in excess thereof (provided that no single Debentures may be
repurchased in part unless the portion of the principal amount of such
Debentures to be Outstanding after such repurchase is equal to $1,000 or
integral multiples of $1,000 in excess thereof), on the date (the "Repurchase
Date") that is 45 days after the date of the Company Notice (as defined in
Section 4.03 hereof) at a purchase price equal to 100% of the principal amount
of the Debentures to be repurchased (the "Repurchase Price") plus interest
accrued and unpaid to, but excluding, the Repurchase Date. At the option of the
Company, the Repurchase Price may be paid in cash or, subject to the fulfillment
by the Company of the conditions set forth Section 4.02, by delivery of shares
of Common Stock having a fair market value equal to the Repurchase Price.
Section 4.02. Conditions to the Company's Election to Pay the
Repurchase Price in Common Stock.
The Company may elect to pay the Repurchase Price by delivery
of shares of Common Stock pursuant to Section 4.02 if and only if the following
conditions shall have been satisfied:
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(1) the shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair market value as of the Repurchase Date of not
less than the Repurchase Price. The fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the Closing Prices per share of Common Stock for the five consecutive Trading
Days immediately preceding and including the third Trading Day prior to the
Repurchase Date;
(2) the shares of Common Stock to be issued upon repurchase of
Debentures hereunder (i) shall not require registration under any federal
securities law before such shares may be freely transferable without being
subject to any transfer restrictions under the Securities Act of 1933, as
amended, upon repurchase or, if such registration is required, such registration
shall be completed and shall become effective prior to the Repurchase Date, and
(ii) shall not require registration with or approval or any governmental
authority under any state law or any other federal law before such shares may be
validly issued or delivered upon repurchase or if such registration is required
or such approval must be obtained, such registration shall be completed or such
approval shall be obtained prior to the Repurchase Date;
(3) the shares of Common Stock to be issued upon repurchase of
Debentures hereunder are, or shall have been, approved for quotation on the
Nasdaq National Market or listed on a national securities exchange, in any case,
prior to the Repurchase Date; and
(4) all shares of Common Stock which may be issued upon
repurchase of Debentures will be issued out of the Company's authorized but
unissued Common Stock and, will upon issue, be duly and validly issued and fully
paid and non-assessable and free of any preemptive or similar rights.
If all of the conditions set forth in this Section 4.02 are
not satisfied in accordance with the terms thereof, the Repurchase Price shall
be paid by the Company only in cash.
Section 4.03. Notices; Method of Exercising Repurchase Right,
Etc.
(a) Unless the Company shall have theretofore called for
redemption all of the Outstanding Debentures, on or before the 30th day after
the occurrence of a Change in Control, the Company or, at the request and
expense of the Company on or before the 30th day after such occurrence, the
Trustee, shall give to all Holders of Debentures notice (the "Company Notice")
of the occurrence of the Change in Control and of the repurchase right set forth
herein arising as a result thereof. The Company shall also deliver a copy of
such Company Notice to the Trustee.
Each Company Notice shall describe such Change in Control and
shall further state:
(i) the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
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(▇▇) the date by which the repurchase right must be
exercised pursuant to Section 4.03(b),
(iii) the Repurchase Price, and whether the Repurchase
Price shall be paid by the Company in cash or by delivery of shares of Common
Stock,
(iv) a description of the procedure which a Holder
must follow to exercise a repurchase right, and the place or places where such
Debentures, are to be surrendered for payment of the Repurchase Price and
accrued and unpaid interest, if any, to, but excluding, the Repurchase Date,
(v) that on the Repurchase Date the Repurchase Price,
and accrued and unpaid interest, if any, will become due and payable upon each
such Debenture designated by the Holder to be repurchased, and that interest
thereon shall cease to accrue on and after said date, and
(vi) the Conversion Price (as defined in Section 5.01
hereof) then in effect, the date on which the right to convert the principal
amount of the Debentures to be repurchased will terminate and the place or
places where such Debentures may be surrendered for conversion.
No failure of the Company to give the foregoing
notices or defect therein shall limit any Holder's right to exercise a
repurchase right or affect the validity of the proceedings for the repurchase of
Debentures.
(b) To exercise a repurchase right, a Holder shall deliver to
the Trustee on or before the 30th day after the date of the Company Notice (i)
written notice of the Holder's exercise of such right, which notice shall set
forth the name of the Holder, the principal amount of the Debentures to be
repurchased (and, if any Debentures are to be repurchased in part, the serial
number thereof, the portion of the principal amount thereof to be repurchased
and the name of the Person in which the portion thereof to remain Outstanding
after such repurchase is to be registered) and a statement that an election to
exercise the repurchase right is being made thereby, and, in the event that the
Repurchase Price shall be paid in shares of Common Stock, the name or names
(with addresses) in which the certificate or certificates for shares of Common
Stock shall be issued, and (ii) the Debentures with respect to which the
repurchase right is being exercised. Such written notice shall be irrevocable,
except that the right of the Holder to convert the Debentures with respect to
which the repurchase right is being exercised shall continue until the close of
business on the Business Day immediately preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid to
the Trustee the Repurchase Price in cash or shares of Common Stock, as provided
above, for payment to the Holder on the Repurchase Date or, if shares of Common
Stock are to be paid, as promptly after the Repurchase Date as practicable,
together with accrued and unpaid interest to, but excluding, the Repurchase Date
payable with respect
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to the Debentures as to which the repurchase right has been exercised; provided,
however, that installments of interest that mature on or prior to the Repurchase
Date shall be payable in cash to the Holders of such Debentures registered as
such at the close of business on the relevant Regular Record Date. The Company
covenants that, if the Repurchase Price is to be paid in cash, at least one
Business Day prior to the Repayment Date it will deposit with the Trustee or
with a Paying Agent an amount of money sufficient to pay the principal of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued and
unpaid interest on, all the Debentures or portions thereof, as the case may be,
to be repaid on such Repayment Date.
(d) If any Debenture (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount of
such Debenture (or portion thereof, as the case may be) shall, until paid,
continue to bear interest to the extent permitted by applicable law from the
Repurchase Date at the rate per annum specified herein, and each Debenture shall
remain convertible into Common Stock until the principal of such Debenture (or
portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Debentures which are to be repurchased only in part
shall be surrendered to the Trustee (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Debentures without service charge, a new Debenture or
Debentures, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Debentures so surrendered.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately prior to the
close of business on the Repurchase Date and the Person or Persons in whose name
or names any certificate or certificates for shares of Common Stock shall be
issuable upon such repurchase shall be deemed to have become on the Repurchase
Date the holder or holders of record of the shares represented thereby;
provided, however, that any surrender for repurchase on a date when the stock
transfer books of the Company shall be closed shall constitute the Person or
Persons in whose name or names the certificate or certificates for such shares
are to be issued as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock transfer
books are open. No payment or adjustment shall be made for dividends or
distributions on any Common Stock issued upon repurchase of any Securities
declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of
Debentures. If more than one Debenture shall be repurchased from the same Holder
and the Repurchase Price shall be payable in shares of Common Stock, the number
of full shares which shall be issuable upon such repurchase shall be computed on
the basis of the aggregate principal amount of the Debentures so repurchased.
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Instead of any fractional share of Common Stock which would otherwise be
issuable on the repurchase of any Debenture or Debentures, the Company will
deliver to the applicable Holder its check for the current market value of such
fractional share. The current market value of a fraction of a share shall be
determined by multiplying the current market price of a full share by the
fraction, and rounding the result to the nearest cent. For purposes of this
Section, the current market price of a share of Common Stock shall be the
Closing Price per share of the Common Stock on the Trading Day immediately
preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Debentures shall be made without charge to the
Holder of Debentures being repurchased for such certificates or for any tax or
duty in respect of the issuance or delivery of such certificates or the
Debentures represented thereby; provided, however, that the Company shall not be
required to pay any tax or duty which may be payable in respect of (i) income of
the Holder or (ii) any transfer involved in the issuance or delivery of
certificates for shares of Common Stock in a name other than that of the Holder
of the Debentures being repurchased, and no such issuance or delivery shall be
made unless and until the Person requesting such issuance or delivery has paid
to the Company the amount of any such tax or duty or has established, to the
satisfaction of the Company, that such tax or duty has been paid.
(i) All Debentures delivered for repurchase shall be delivered
to the Trustee to be canceled at the direction of the Trustee, which shall
dispose of the same as provided in Section 310 of the Indenture.
Section 4.04. Consolidation, Merger, Etc.
In the case of any consolidation, conveyance or sale of all or
substantially all of the assets of the Company or merger to which Article Eight
of the Indenture applies, in which the Common Stock of the Company is changed or
exchanged as a result into the right to receive shares of stock and other
securities or property or assets (including cash) which includes shares of
Common Stock of the Company or common stock of another Person that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets (including
cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Person formed by such consolidation or resulting from such
merger of which acquires the properties or assets (including cash) of the
Company, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture modifying the provisions of the Indenture in relation to
the right of Holders to cause the Company to repurchase the Debentures following
a Change in Control, including without limitation the applicable provisions of
this Article IV and the definitions of Common Stock and Change in Control, as
appropriate, and such other related definitions set forth herein and in the
Indenture as determined in good faith by the Company (which determination shall
be conclusive and binding), to make such provisions apply in the event of a
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subsequent Change in Control to the common stock and the issuer thereof if
different from the Company and Common Stock of the Company (in lieu of the
Company and the Common Stock of the Company).
ARTICLE V
Conversion of Debentures
Section 5.01. Conversion Right and Conversion Price.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Debenture or any portion of
the principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, or of such portion thereof,
into duly authorized, fully paid and nonassessable shares of Common Stock, at
the Conversion Price, determined as hereinafter provided, in effect at the time
of conversion. Such conversion right shall expire at the close of business on
_______, 2010.
In case a Debenture or portion thereof is called for
redemption, such conversion right in respect of the Debenture or the portion so
called, shall expire at the close of business on the second Business Day
preceding the Redemption Date, unless the Company defaults in making the payment
due upon redemption. In the case of a Change in Control for which the Holder
exercises its repurchase right with respect to a Debenture or portion thereof,
such conversion right in respect of the Debenture or portion thereof shall
expire at the close of business on the Business Day immediately preceding the
Repurchase Date.
The price at which shares of Common Stock shall be delivered
upon conversion (the "Conversion Price") shall be initially equal to $_________
per share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in paragraphs (a), (b), (c), (d), (e), (f), (h) and (1) of
Section 5.04 hereof.
Section 5.02. Exercise of Conversion Right.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency where Debentures may be presented for
conversion (the "Conversion Agent").
To exercise the conversion right, the Holder of any Debenture
to be converted shall surrender such Debenture duly endorsed or assigned to the
Company or in blank, at the office of the Conversion Agent, accompanied by a
duly signed conversion notice substantially in the form attached to the
Debentures to the Company stating that the Holder elects to convert such
Debenture or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted.
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Debentures surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date (except in the case of any Debenture
whose Maturity is prior to such Interest Payment Date) shall be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest to be received on such Interest
Payment Date on the principal amount of Debentures being surrendered for
conversion.
Debentures shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Debentures for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Debentures as Holders shall cease, and the Person
or Persons entitled to receive the Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the conversion date, the
Company shall cause to be issued and delivered to such Conversion Agent a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share as provided in Section 5.03 hereof.
In the case of any Debenture which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Debenture or Debentures of authorized denominations in aggregate principal
amount equal to the unconverted portion of the principal amount of such
Debentures.
The Company hereby initially appoints the Trustee as the
Conversion Agent.
Section 5.03. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of any Debenture or Debentures. If more than one Debenture shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issued upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Debentures (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issued upon conversion of any Debenture or Debentures (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction (calculated to the nearest one-100th of a share) in an amount
equal to the same fraction of the Closing Price of the Common Stock as of the
Trading Day immediately preceding the date of conversion.
Section 5.04. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustments,
calculated by the Company, from time to time as follows:
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(a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in shares
of Common Stock, the Conversion Price in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of business on
the Record Date (as defined in Section 5.04(g)) fixed for such
determination, and
(ii) the denominator of which shall be the sum of such
number of shares and the total number of shares constituting
such dividend or other distribution.
Such reduction shall become effective immediately after the opening of
business on the day following the Record Date. If any dividend or
distribution of the type described in this Section 5.04(a) is declared
but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend
or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and conversely, in case outstanding shares
of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants (other
than any rights or warrants referred to in Section 5.04(d)) to all
holders of its outstanding shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a
conversion price per share) less than the Current Market Price (as
defined in Section 5.04(g)) on the Record Date fixed for the
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in
effect at the opening of business on the date after such Record Date by
a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of business on
the Record Date plus the number of
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shares which the aggregate offering price of the total number
of shares so offered for subscription or purchase (or the
aggregate conversion price of the convertible securities so
offered) would purchase at such Current Market Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding on the close of business on
the Record Date plus the total number of additional shares of
Common Stock so offered for subscription or purchase (or into
which the convertible securities so offered are convertible).
Such adjustment shall become effective immediately after the opening of
business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock (or securities convertible into
Common Stock) are not delivered pursuant to such rights or warrants,
upon the expiration or termination of such rights or warrants the
Conversion Price shall be readjusted to the Conversion Price which
would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of the delivery of only
the number of shares of Common Stock (or securities convertible into
Common Stock) actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such Current Market Price,
and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration
received for such rights or warrants, the value of such consideration
if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any dividends or distributions
to which Section 5.04(a) applies) or evidences of its indebtedness,
cash or other assets, including securities, but excluding (1) any
rights or warrants referred to in Section 5.04(c), (2) any stock,
securities or other property or assets (including cash) distributed in
connection with a reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance to which
Section 5.11 hereof applies and (3) dividends and distributions paid
exclusively in cash (the capital stock, evidences of indebtedness, cash
and other assets described in foregoing clauses (1), (2) and (3)
hereinafter in this Section 5.04(d) called the "assets"), then, in each
such case, subject to the second succeeding paragraph of this Section
5.04(d), the Conversion Price shall be reduced so that the same shall
be equal to the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Record Date
(as defined in Section 5.04(g)) with respect to such distribution by a
fraction:
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(i) the numerator of which shall be the Current Market
Price (determined as provided in Section 5.04(g)) on such date
less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set
forth in a Board Resolution) on such date of the portion of
the assets so distributed applicable to one share of Common
Stock (determined on the basis of the number of shares of the
Common Stock outstanding on the Record Date), and
(ii) the denominator of which shall be such Current
Market Price.
Such reduction shall become effective immediately prior to the opening
of business on the day following the Record Date. However, in the event
that the then fair market value (as so determined) of the portion of
the assets so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made
so that each Holder shall have the right to receive upon conversion of
a Debenture (or any portion thereof) the amount of assets such Holder
would have received had such Holder converted such Debenture (or
portion thereof) immediately prior to such Record Date. In the event
that such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 5.04(d) by
reference to the actual or when issued trading market for any
securities comprising all or part of such distribution, it must in
doing so consider the prices in such market over the same period (the
"Reference Period") used in computing the Current Market Price pursuant
to Section 5.04(g) to the extent possible, unless the Board of
Directors in a Board Resolution determines in good faith that
determining the fair market value during the Reference Period would not
be in the best interest of the Holders.
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe for
or purchase shares of the Company's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of
Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances
of Common Stock,
shall be deemed not to have been distributed (and no adjustment to the
Conversion Price will be required) until the occurrence of the earliest
Trigger Event. If such right or warrant is subject
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to subsequent events, upon the occurrence of which such right or
warrant shall become exercisable to purchase different securities,
evidences of indebtedness or other assets or entitle the holder to
purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different purchase price, then the occurrence
of each such event shall be deemed to be the date of issuance and
Record Date with respect to a new right or warrant (and a termination
or expiration of the existing right or warrant without exercise by the
holder thereof). In addition, in the event of any distribution (or
deemed distribution) of rights or warrants, or any Trigger Event or
other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion
Price:
(1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise
by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder of
Common Stock with respect to such rights or warrant (assuming
such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or
repurchase, and
(2) in the case of such rights or warrants all of
which shall have expired or been terminated without exercise,
the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or
conveyance to which Section 5.11 hereof applies or as part of a
distribution referred to in Section 5.04(d) hereof), in an aggregate
amount that, combined together with:
(1) the aggregate amount of any other such
distributions to all holders of Common Stock made exclusively
in cash within the 12 months preceding the date of payment of
such distribution, and in respect of which no adjustment
pursuant to this Section 5.04(e) has been made, and
(2) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board
Resolution) of consideration payable in respect of any tender
offer by the Company or any of its Subsidiaries for all or any
portion of the Common Stock concluded within the 12 months
preceding the date of such distribution, and in respect of
which no adjustment pursuant to Section 5.04(f) hereof has
been made,
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exceeds 15% of the product of the Current Market Price (determined as
provided in Section 5.04(g)) on the Record Date with respect to such
distribution times the number of shares of Common Stock outstanding on
such date, then and in each such case, immediately after the close of
business on such date, the Conversion Price shall be reduced so that
the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on such
Record Date by a fraction:
(i) the numerator of which shall be equal to the
Current Market Price on the Record Date less an amount equal
to the quotient of (x) the excess of such combined amount over
such 15% and (y) the number of shares of Common Stock
outstanding on the Record Date, and
(ii) the denominator of which shall be equal to the
Current Market Price on such date.
However, in the event that the excess of such combined amount over such
15% applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall
have the right to receive upon conversion of a Security (or any portion
thereof) the amount of cash such Holder would have received had such
Holder converted such Security (or portion thereof) immediately prior
to such Record Date. In the event that such dividend or distribution is
not so paid or made, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender offer made by the Company or any of its
Subsidiaries for all or any portion of the Common Stock shall expire
and such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution) that combined
together with:
(1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board
Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offers,
by the Company or any of its Subsidiaries for all or any
portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to this Section 5.04(f) has
been made, and
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(2) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash
within 12 months preceding the expiration of such tender offer
and in respect of which no adjustment pursuant to Section
5.04(e) has been made,
exceeds 15% of the product of the Current Market Price (determined as
provided in Section 5.04(g)) as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender offer (as
it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) at the Expiration Time,
then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to close of business on the date of the Expiration
Time by a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and
(ii) the denominator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender offer)
of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y)
the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time
and the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective immediately prior to the
opening of business on the day following the Expiration Time. In the
event that the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases
are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such tender offer had
not been made. If the application of this Section 5.04(f) to any tender
offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section
5.04(f).
(g) For purposes of this Section 5.04, the following terms
shall have the meanings indicated:
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(1) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided, however, that if:
(i) the "ex" date (as hereinafter defined)
for any event (other than the issuance or
distribution requiring such computation) that
requires an adjustment to the Conversion Price
pursuant to Section 5.04(a), (b), (c), (d), (e) or
(f) occurs during such ten consecutive Trading Days,
the Closing Price for each Trading Day prior to the
"ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction
by which the Conversion Price is so required to be
adjusted as a result of such other event;
(ii) the "ex" date for any event (other than
the issuance or distribution requiring such
computation) that requires an adjustment to the
Conversion Price pursuant to Section 5.04(a), (b),
(c), (d), (e) or (f) occurs on or after the "ex" date
for the issuance or distribution requiring such
computation and prior to the day in question, the
Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by
multiplying such Closing Price by the reciprocal of
the fraction by which the Conversion Price is so
required to be adjusted as a result of such other
event; and
(iii) the "ex" date for the issuance or
distribution requiring such computation is prior to
the day in question, after taking into account any
adjustment required pursuant to clause (i) or (ii) of
this proviso, the Closing Price for each Trading Day
on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair
market value (as determined by the Board of Directors
in a manner consistent with any determination of such
value for purposes of Section 5.04(d) or (f), whose
determination shall be conclusive and set forth in a
Board Resolution) of the evidences of indebtedness,
shares of capital stock or assets being distributed
applicable to one share of Common Stock as of the
close of business on the day before such "ex" date.
For purposes of any computation under Section 5.04(f), the
Current Market Price of the Common Stock on any date shall be
deemed to be the average of the daily Closing Prices per share
of Common Stock for such day and the next two succeeding
Trading Days; provided, however, that if the "ex" date for any
event (other than the tender offer requiring such computation)
that requires an adjustment to the Conversion Price pursuant
to Section 5.04(a), (b), (c), (d), (e) or (f) occurs on or
after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question,
the Closing Price for each Trading Day on and after the "ex"
date for such
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other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of
such other event. For purposes of this paragraph, the term
"ex" date, when used:
(A) with respect to any issuance or
distribution, means the first date on which the
Common Stock trades regular way on the relevant
exchange or in the relevant market from which the
Closing Price was obtained without the right to
receive such issuance or distribution;
(B) with respect to any subdivision or
combination of shares of Common Stock, means the
first date on which the Common Stock trades regular
way on such exchange or in such market after the time
at which such subdivision or combination becomes
effective, and
(C) with respect to any tender or exchange
offer, means the first date on which the Common Stock
trades regular way on such exchange or in such market
after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments
to the Conversion Price are called for pursuant to this
Section 5.04, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate
the intent of this Section 5.04 and to avoid unjust or
inequitable results as determined in good faith by the Board
of Directors.
(2) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(3) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 5.04(a), (b), (c),
(d), (e) or (f), as the Board of Directors considers to be advisable to
avoid or diminish any income tax to holders of Common Stock or rights
to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such
for income tax purposes.
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To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least 20 days and the reduction is
irrevocable during the period and the Board of Directors determines in
good faith that such reduction would be in the best interests of the
Company, which determination shall be conclusive and set forth in a
Board Resolution. Whenever the Conversion Price is reduced pursuant to
the preceding sentence, the Company shall mail to the Trustee and each
Holder at the address of such Holder as it appears in the Security
Register a notice of the reduction at least 15 days prior to the date
the reduced Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period during which it will be in
effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this Section 5.04(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article V shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a
share, as the case may be. No adjustment need be made for a change in
the par value or no par value of the Common Stock. To the extent the
Debentures become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash. Interest shall not
accrue on the cash.
(j) In any case in which this Section 5.04 provides that an
adjustment shall become effective immediately after a Record Date for
an event, the Company may defer until the occurrence of such event (i)
issuing to the Holder of any Debenture converted after such Record Date
and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (ii) paying
to such Holder any amount in cash in lieu of any fraction pursuant to
Section 5.03 hereof.
(k) For purposes of this Section 5.04, the number of shares of
Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the
Company.
(l) If the distribution date for the rights provided in the
Company's rights agreement, if any, occurs prior to the date a
Debenture is converted, the Holder of the Debenture who converts such
Debenture after the distribution date shall not be entitled to receive
the rights that would otherwise be attached (but for the date of
conversion) to the shares of Common Stock received upon such
conversion; provided, however, that an adjustment shall be made to the
Conversion Price pursuant to clause 5.04(c) as if the rights
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were being distributed to the common stockholders of the Company
immediately prior to such conversion. If such an adjustment is made and
the rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the Conversion
Price, on an equitable basis, to take account of such event.
Section 5.05. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided
(other than in the case of an adjustment pursuant to the second paragraph of
Section 5.04(h) for which the notice required by such paragraph has been
provided), the Company shall promptly file with the Trustee and the Conversion
Agent other than the Trustee an Officers' Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such
adjustment is based. Promptly after delivery of such Officers' Certificate, the
Company shall prepare a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price and the date on which
each adjustment becomes effective, and shall mail such notice to each Holder at
the address of such Holder as it appears in the Security Register within 20 days
of the effective date of such adjustment. Failure to deliver such notice shall
not effect the legality or validity of any such adjustment.
Section 5.06. Notice Prior to Certain Actions.
In case at any time after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to all of the
holders of its Common Stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class (or of securities
convertible into shares of capital stock of any class) or of any other
rights;
(3) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding Common Stock, a change in par value, a change from par
value to no par value or a change from no par value to par value), or
any merger, consolidation, statutory share exchange or combination to
which the Company is a party and for which approval of any shareholders
of the Company is required, or the sale, transfer or conveyance of all
or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
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the Company shall cause to be filed with the Conversion Agent, and shall cause
to be provided to the Trustee and all Holders, at least 20 days (or 10 days in
any case specified in clause (1) or (2) above) prior to the applicable record or
effective date hereinafter specified, a notice stating:
(A) the date on which a record is to be taken for the purpose
of such dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon
such reclassification, merger, consolidation, statutory share exchange,
sale, transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 5.06.
Section 5.07. Company to Reserve Common Stock.
The Company shall at all times use its best efforts to reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion of
Debentures, the full number of shares of fully paid and nonassessable Common
Stock then issuable upon the conversion of all Outstanding Debentures.
Section 5.08. Taxes on Conversions.
Except as provided in the next sentence, the Company will pay
any and all taxes (other than taxes on income) and duties that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures pursuant hereto. A Holder delivering a Debenture for conversion shall
be liable for and will be required to pay any tax or duty which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that of the Holder of the Debenture or
Debentures to be converted, and no such issue or delivery shall be made unless
the Person requesting such issue has paid to the Company the amount of any such
tax or duty, or has established to the satisfaction of the Company that such tax
or duty has been paid.
Section 5.09. Covenant as to Common Stock.
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The Company covenants that all shares of Common Stock which
may be issued upon conversion of Debentures will upon issue be fully paid and
nonassessable and, except as provided in Section 5.08, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 5.10. Cancellation of Converted Debentures.
All Debentures delivered for conversion shall be delivered by
the Conversion Agent to the Trustee to be canceled and thereafter destroyed.
Section 5.11. Effect of Reclassification, Consolidation,
Merger or Sale.
If any of following events occur, namely:
(i) any reclassification or change of the outstanding shares
of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision or combination),
(ii) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock or
(iii) any sale or conveyance of the properties and assets of
the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture providing that each
Debenture shall be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash) which the Holder would
have been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had
such Debenture been converted into Common Stock immediately prior to such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming the holder of such Common Stock did not
exercise its rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such merger, consolidation, statutory
share exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such merger, consolidation,
statutory share exchange, sale or conveyance is not the same for each share of
Common Stock in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purposes of this Section 5.11 the
kind and amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance for each
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Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares). Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article V. If, in the case
of any such reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance, the stock or other securities and
assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Debentures as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the Securities Register, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 5.11 applies to any event or occurrence,
Section 5.04 hereof shall not apply.
Section 5.12. Responsibility of Trustee for Conversion Provisions.
The Trustee and the Conversion Agent shall not at any time be
under any duty or responsibility to any Holder of Debentures to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or intent of any such adjustments when
made, or with respect to the method employed, or herein or in any other
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor the Conversion Agent shall be accountable with respect to the
validity or value (of the kind or amount) of any Common Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Debenture; and it or they do not make any representation with
respect thereto. Neither the Trustee nor the Conversion Agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any shares of stock or share certificates or other
securities or property upon the surrender of any Debenture for the purpose of
conversion; and the Trustee and the Conversion Agent shall not be responsible or
liable for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
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ARTICLE VI
SUBORDINATION
6.01. Section Agreement of Subordination.
The Company covenants and agrees, and each holder of
Debentures issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Debentures shall be issued subject to the provisions of this
Article VI; and each Person holding any Debenture, whether upon original issue
or upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest
on all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Debt, whether outstanding at the date of
this Supplemental Indenture or thereafter incurred, and the priorities expressed
in Section 704 of the Indenture shall be deemed, in relation to the Debentures,
to be amended so that, if the Trustee collects any moneys pursuant to Article
Five of the Indenture, then it shall pay out the moneys to the holders of Senior
Debt to the extent required by this Article VI as a second priorty.
No provision of this Article Six shall prevent the occurrence
of any default or Event of Default hereunder.
6.02. Section Payments to Debentureholders.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any Senior
Debt continuing beyond the period of grace, if any, specified in the instrument
or lease evidencing such Senior Debt, unless and until such default shall have
been cured or waived or shall have ceased to exist, and in the event that the
maturity of any Senior Debt has been accelerated because of a default, then no
payment shall be made by the Company with respect to the principal (including
redemption and repurchase payments) of, or premium, if any, or interest on the
Debentures.
During the continuance of any other event of default with
respect to Senior Debt for which maturity may be accelerated immediately, upon
receipt by the Trustee of written notice from the trustee or other
representative for the holders of such Senior Debt, no payment which would be
prohibited if any Senior Debt has not been paid (as set out in the immediately
preceding paragraph) may be made by or on behalf of the Company upon or in
respect of the Debentures for a period commencing on the date of receipt of such
notice and ending 90 days thereafter (unless such period shall be terminated by
written notice to the Trustee from such trustee or other representative or such
holders); however, if the maturity of any such Senior Debt is not accelerated
within 90 days following the due date of payments prevented by such event of
default and notice, the Company may resume payments on the Debentures.
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Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Debt shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made on account of the
principal (and premium, if any) or interest on the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders of the Debentures
or the Trustee would be entitled, except for the provisions of this Article VI,
shall (except as provided in the final paragraph of this Section 6.02) be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the holders of
the Debentures or by the Trustee if received by them or it, directly to the
holders of Senior Debt (pro rata to such holders on the basis of the respective
amounts of Senior Debt held by such holders, as calculated by the Company).
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing paragraphs of this
Section 6.02, shall be received by the Trustee or the Holders of the Debentures
before all Senior Debt is paid in full, or provision is made for such payment in
money in accordance with its terms, such payment or distribution (subject to the
provisions of Section 6.05) shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of Senior Debt or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Debt may have been issued, as
their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Debt remaining unpaid to the extent
necessary to pay all Senior Debt in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.
For purposes of this Article VI, the words, cash, property or
securities shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article VI with respect
to the Debentures to the payment of all Senior Debt which may at the time be
outstanding; provided that the Senior Debt is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and the rights of
the holders of the Senior Debt (other than leases) and of leases which are
assumed are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Eight of the Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 6.02 if such other corporation shall, as a
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part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eight of the Indenture.
Section 6.03. Subrogation of Debentures.
Subject to the payment in full of all Senior Debt then due,
the rights of the holders of the Debentures shall be subrogated to the rights of
the holders of Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Debt until the
principal of (and premium, if any) and interest on the Debentures shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or securities to which
the Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article VI, and no payment over pursuant to the provisions of
this Article VI, to or for the benefit of the holders of Senior Debt by holders
of the Debentures or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Debt, and the Holders of the Debentures, be deemed
to be a payment by the Company to or on account of the Senior Debt. It is
understood that the provisions of this Article VI are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Debentures, on the one hand, and the holders of the Senior Debt, on the other
hand.
Nothing containing in this Article VI or elsewhere in this
Supplemental Indenture or the Indenture or in the Debentures is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Debt, and the Holders of the Debentures, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Debentures the
principal of (and premium, if any) and interest on the Debentures as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Debentures
and creditors of the Company other than the holders of the Senior Debt, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article VI of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article VI, the Trustee and the Holders of the Debentures
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Debentures, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
VI.
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Section 6.04. Authorization by Debentureholders.
Each Holder of a Debenture by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article VI and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 6.05. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article VI. Notwithstanding the provisions of this Article VI
or any other provision of this Supplemental Indenture or the Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of the Article VI, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior Debt or from any representative or
trustee therefor; and before the receipt of any such written notice, the Trustee
shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not fewer than three business days prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Debenture) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 6.05, then,
anything contained in this Supplemental Indenture or the Indenture to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Notwithstanding anything to the contrary set forth in this
Supplemental Indenture or the Indenture, nothing shall prevent any payment by
the Company or the Trustee to the Debentureholders of monies in connection with
a redemption of Debentures if notice of such redemption has been given prior to
the receipt by the Trustee of written notice as aforesaid, and such notice of
redemption is given not earlier than 60 days before the Redemption Date.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior Debt
(or a representative or trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Debt or a representative or trustee
on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article VI, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or
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distribution and any other facts pertinent to the rights of such Person under
this Article VI, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 6.06. Trustees Relation to Senior Debt.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article VI in respect of any Senior Debt at any
time held by it, to the same extent as any other holder of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article VI, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and the Trustee shall not be liable
to any holder of Senior Indebtedness if it shall pay over or deliver to holders
of Debentures, the Company or any other Person, money or assets to which any
holder of Senior Debt shall be entitled by virtue of this Article VI or
otherwise.
Section 6.07. No Impairment of Subordination.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Supplemental Indenture or the Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Section 6.08. Acceleration of Payment of Debentures.
If payment of the Debentures is accelerated because of an
Event of Default, the Company shall, or shall cause the Trustee to, promptly
notify holders of Senior Debt of the acceleration. The Company may not pay the
Debentures until 30 days after the acceleration occurs (if any Senior Debt
remains outstanding) and thereafter may pay the Debentures only if otherwise
permitted by this Article VI.
ARTICLE VII
Miscellaneous
Section 7.01. Confirmation of Indenture.
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The Indenture, as supplemented and amended by this Fifth
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Fifth Supplemental
Indenture and all other indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
Section 7.02. Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities
by reason of this Fifth Supplemental Indenture other than as set forth in the
Indenture.
The recitals contained herein shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
same, except for the recital indicating the Trustee's approval of the form of
this Fifth Supplemental Indenture. The Trustee makes no representation as to the
validity of this Fifth Supplemental Indenture.
The Trustee accepts the trust created by the Indenture, as
supplemented by this Fifth Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
Fifth Supplemental Indenture.
------------------------
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
▇▇▇▇-▇▇▇▇▇ CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
CITIBANK, N.A.,
as Trustee
By:
--------------------------------
Name:
Title:
37
STATE OF OKLAHOMA )
) SS.:
COUNTY OF OKLAHOMA )
On the ___ day of __________, 2000, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
she/he is the _________ of ▇▇▇▇-▇▇▇▇▇ CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that she/he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she/he signed her/his name thereto by like authority.
-----------------------
Notary Public
SEAL
38
EXHIBIT A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR THE INDIVIDUAL DEBT SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
39
▇▇▇▇-▇▇▇▇▇ CORPORATION
____% Convertible Subordinated Debenture due 2010
CUSIP No. 492386 AP 2 $
----------------
▇▇▇▇-▇▇▇▇▇ CORPORATION, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ___________________,
or its registered assigns, the principal sum of ________________ U.S. Dollars
[or such greater or lesser amount as is indicated on the Schedule of Exchanges
attached hereto](1) ($_____________) on , 2010.
Interest Payment Dates: and , commencing , 2000
Regular Record Dates: and
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
-------------------
(1) This phrase should be included only if the Debenture is issued in global
form.
40
IN WITNESS WHEREOF, the Company has caused this Debenture to
be duly executed manually or by facsimile by its duly authorized officers.
.
▇▇▇▇-▇▇▇▇▇ CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Trustee's Certificate of Authentication
This is one of the % Convertible Subordinated Debentures due 2010
described in the within-named Indenture.
CITIBANK, N.A.,
as Trustee
By:
---------------------------------
Authorized Signatory
Dated: , 2000
41
[REVERSE OF DEBENTURE]
▇▇▇▇-▇▇▇▇▇ CORPORATION
% Convertible Subordinated Debenture due 2010
Capitalized terms used herein but not defined shall have the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
1. Principal and Interest.
▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Debenture
at a rate of ___% per annum from _______, 2000 or the most recent Interest
Payment Date to which interest has been duly paid or provided for until
repayment at Stated Maturity, redemption or repurchase. The Company will pay
interest on this Debenture semiannually in arrears on and
of each year, commencing , 2000.
The Company shall pay interest (including post-petition
interest in any proceeding under Title 11, U.S.C., or any similar federal or
state law for the relief of debts) on overdue principal on this Debenture and
premium, if any, from time to time on demand at the rate per annum specified in
the next preceding paragraph, and it shall pay interest (including post-petition
interest in any proceeding under Title 11, U.S.C., or any similar federal or
state law for the relief of debts) on overdue installments of interest hereon
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful.
Interest on the Debentures shall be computed on the basis of a
360-day year of twelve 30-day months.
Except as provided in this paragraph, if a Holder converts its
Debentures into Common Stock on any day other than an Interest Payment Date,
such Holder shall receive no interest that has accrued on such Debentures. A
Holder who converts a Debenture after a Regular Record Date for an interest
payment but prior to the corresponding Interest Payment Date, shall be entitled
to receive on the Interest Payment Date interest accrued and paid on such
Debentures, notwithstanding the conversion of such Debentures prior to such
Interest Payment Date. However, at the time such Holder surrenders such
Debentures for conversion, such Holder must pay to the Company an amount equal
to the interest that has accrued and will be paid on the Interest Payment Date
on the Debentures being converted. However, the preceding sentence shall not
apply to Debentures that are converted after being called by the Company for
redemption. In addition, if the Redemption Date is prior to a Regular Record
Date for an Interest Payment Date, and prior to such Redemption Date such Holder
chooses to convert such Holder's Debentures, such Holder will receive on the
date that has been fixed for redemption the amount of interest such Holder would
have received if such Holder had not converted its Debentures.
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2. Method of Payment.
Interest on any Debenture which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Principal of, and premium, if any, and interest on, Global
Securities will be payable to the U.S. Depositary in immediately available
funds.
Principal and premium, if any, on definitive securities will
be payable at the office or agency of the Company maintained for such purpose,
initially the Corporate Trust Office of the Trustee. Interest on definitive
securities will be payable by (i) U.S. Dollar check drawn on a bank in The City
of New York mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or (ii) upon application to the Security
Registrar by a Holder of an aggregate principal amount in excess of $5,000,000,
wire transfer in immediately available funds.
3. Paying Agent, Conversion Agent and Security Registrar.
Initially, Citibank, N.A., the Trustee under the Indenture,
will act as Paying Agent, Conversion Agent and Security Registrar. The Company
may change the Paying Agent, Conversion Agent or Security Registrar without
notice to any Holder.
4. Indenture.
The Company issued this Debenture under an Indenture, dated as
of August 1, 1982, as amended (the "Indenture"), between the Company and
Citibank, N.A., as trustee (the "Trustee"). The terms of the Debenture include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. This Debenture is subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Debenture and the terms of
the Indenture, the terms of the Indenture shall control.
5. Optional Redemption.
At any time on or after ________, 2005, the Company may redeem
some or all of the Debentures on at least 30 but not more than 60 days' notice,
at the following redemption prices (expressed in percentages of the principal
amount).
43
3
During The Twelve Months Commencing Redemption Price
----------------------------------- ----------------
_________, 2005..................................... %
_________, 2006..................................... %
_________. 2007..................................... %
_________, 2008..................................... %
_________, 2009..................................... 100%
In addition, the Company shall pay interest on the Debentures
being redeemed.
Debentures in original denominations larger than $1,000 may be
redeemed in part. If any Debenture selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Debenture so selected, the converted portion of such Debenture shall be
deemed to be the portion selected for redemption (provided, however, that the
Holder of such Debenture so converted and deemed redeemed shall not be entitled
to any additional interest payment as a result of such deemed redemption than
such Holder would have otherwise been entitled to receive upon conversion of
such Debenture). Debentures which have been converted during a selection of
Debentures to be redeemed may be treated by the Trustee as Outstanding for the
purpose of such selection.
On and after the Redemption Date, interest ceases to accrue on
Debentures or portions of Debentures called for redemption, unless the Company
defaults in the payment of the Redemption Price.
Notice of redemption will be given by the Company to the
Holders as provided in the Indenture.
6. Repurchase Right Upon a Change in Control.
If a Change in Control occurs, the Holder of this Debenture,
at the Holder's option, shall have the right, in accordance with the provisions
of the Indenture, to require the Company to repurchase this Debenture (or any
portion of the principal amount hereof that is at least $1,000 or an integral
multiple thereof, provided that the portion of the principal amount of this
Debenture to be Outstanding after such repurchase is at least equal to $1,000)
at the Repurchase Price in cash, plus any interest accrued and unpaid to the
Repurchase Date.
Subject to the conditions provided in the Indenture, the
Company may elect to pay the Repurchase Price by delivering a number of shares
of Common Stock equal to (i) the Repurchase Price divided by (ii) 95% of the
average of the Closing Prices per share for the five consecutive Trading Days
immediately preceding and including the third Trading Day prior to the
Repurchase Date.
44
4
No fractional shares of Common Stock will be issued upon
repurchase of any Debentures. Instead of any fractional share of Common Stock
which would otherwise be issued upon repurchase of such Debentures, the Company
shall pay a cash adjustment as provided in the Indenture.
A notice will be given by the Company to the Holders as
provided in the Indenture. To exercise a repurchase right, a Holder must deliver
to the Trustee a written notice as provided in the Indenture.
7. Conversion Rights.
Subject to and upon compliance with the provisions of the
Indenture, each Holder of Debentures is entitled, at such Holder's option, at
any time before the close of business on , 2010, to convert the Holder's
Debentures (or any portion of the principal amount hereof which is $1,000 or an
integral multiple thereof), at the principal amount thereof or of such portion,
into duly authorized, fully paid and nonassessable shares of Common Stock of the
Company at the Conversion Price in effect at the time of conversion.
In the case of a Debenture (or a portion thereof) called for
redemption, such conversion right in respect of the Debenture (or such portion
thereof) so called, shall expire at the close of business on the second Business
Day preceding the Redemption Date, unless the Company defaults in making the
payment due upon redemption. In the case of a Change in Control for which the
Holder exercises its Repurchase Right with respect to a Debenture (or a portion
thereof), such conversion right in respect of the Debenture (or portion thereof)
shall expire at the close of business on the Business Day preceding the
Repurchase Date.
The Conversion Price shall be initially equal to $ per
share of Common Stock. The Conversion Price shall be adjusted under certain
circumstances as provided in the Indenture.
To exercise the conversion right, the Holder must surrender
the Debenture (or portion thereof) duly endorsed or assigned to the Company or
in blank, at the office of the Conversion Agent, accompanied by a duly signed
conversion notice to the Company.
No fractional shares of Common Stock will be issued upon
conversion of any Debentures. Instead of any fractional share of Common Stock
which would otherwise be issued upon conversion of such Debentures, the Company
shall pay a cash adjustment as provided in the Indenture.
8. Subordination.
The Indebtedness evidenced by this Debenture is, to the extent
and in the manner provided in the Indenture, subordinated and subject in right
of payment to the prior payment in full of all
45
5
amounts then due on all Senior Debt of the Company, and this Debenture is issued
subject to such provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
9. Events of Default and Remedies.
If any Event of Default with respect to the Debentures shall
occur and be continuing, the principal amount of all the Debenture may be
declared due and payable immediately in the manner and with the effect provided
in the Indenture.
10. Amendments and Waivers.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights of the
Holders of the Debentures at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in aggregate principal amount of the
Outstanding Debentures. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Debentures at the
time Outstanding, on behalf of the Holders of all the Debentures, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding upon such
Holder and upon all future Holders of this Debenture and of any Debenture issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Debenture.
11. Denominations; Transfer; Exchange.
The Debentures are issuable in registered form, without
coupons, in denominations of $1,000 and integral multiples of $1,000 in excess
thereof. A Holder may register the transfer or exchange of Debentures in
accordance with the Indenture. The Security Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture.
In the event of a redemption in part, the Company will not be
required (a) to register the transfer of, or exchange, Debentures for a period
of 15 days immediately preceding any selection of Debentures for such
redemption, or (b) to register the transfer of, or exchange, any such
Debentures, or portion thereof, called for redemption.
46
6
In the event of redemption, conversion or repurchase of the
Debentures in part only, a new Debenture or Debentures for the unredeemed,
unconverted or unrepurchased portion thereof will be issued in the name of the
Holder hereof.
12. Persons Deemed Owners.
The registered Holder of this Debenture shall be treated as
its owner for all purposes.
13. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COMMITTEE (=tenants in common), TEN ENT (=tenants by
the entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian) and U/G/M/A (=Uniform Gifts to Minors
Act).
14. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Debenture Identification Procedures, the Company has caused a CUSIP
number to be printed on this Debenture and the Trustee may use CUSIP numbers in
notices of redemption or repurchase as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
this Debenture or as contained in any notice of redemption or repurchase and
reliance may be placed only on the other identification numbers placed thereon.
15. Governing Law.
The Indenture and this Debenture shall be governed by, and
construed in accordance with, the law of the State of New York.
47
ASSIGNMENT FORM
To assign this Debenture, fill in the form below and have your
signature guaranteed: (I) or (we) assign and transfer this Debenture to:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Name:
--------------------- ---------------------------------
(Print your name exactly as it appears on the
face of this Debenture)
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee*:
-----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
48
CONVERSION NOTICE
TO: ▇▇▇▇-▇▇▇▇▇ CORPORATION
▇▇▇▇-▇▇▇▇▇ Center
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned registered owner of this Debenture hereby
irrevocably exercises the option to convert this Debenture, or the portion
hereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, into shares of Common Stock in accordance with the terms of the
Indenture referred to in this Debenture, and directs that the shares issuable
and deliverable upon such conversion, together with any check in payment for
fractional shares and any Debentures representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of this
Debenture not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of
interest accompanies this Debenture.
Dated: Your Name:
--------------------- ---------------------------------
(Print your name exactly as it appears on the
face of this Debenture)
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee*:
-----------------------
Social Security or other Taxpayer
Identification Number:
----------------------
Principal amount to be converted (if less than all): $
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
49
2
Fill in for registration of shares (if to be issued) and Debentures (if to be
delivered) other than to and in the name of the registered holder:
--------------------------------------------
(Name)
--------------------------------------------
(Street Address)
--------------------------------------------
(City, State and Zip Code)
--------------------------------------------
(Taxpayer Identification Number)
50
NOTICE OF EXERCISE OF REPURCHASE RIGHT
TO: ▇▇▇▇-▇▇▇▇▇ CORPORATION
▇▇▇▇-▇▇▇▇▇ Center
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned registered owner of this Debenture hereby
irrevocably acknowledges receipt of a notice from ▇▇▇▇-▇▇▇▇▇ Corporation (the
"Company") as to the occurrence of a Change in Control with respect to the
Company and requests and instructs the Company to repay the entire principal
amount of this Debenture, or the portion thereof (which is $1,000 principal
amount or an integral multiple thereof) below designated, in accordance with the
terms of the Indenture referred to in this Debenture, together with interest
accrued and unpaid to, but excluding, such date, to the registered holder
hereof, in cash or, at the Company's option, in Common Stock, unless a different
name has been indicated below. If shares or any portion of this Debenture not
repurchased are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Dated: Your Name:
--------------------- ---------------------------------
(Print your name exactly as it appears on the
face of this Debenture)
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee*:
-----------------------
Social Security or other Taxpayer
Identification Number:
----------------------
Principal amount to be converted (if less than all): $
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
51
Fill in for registration of shares (if to be issued) and Debentures (if to be
delivered) other than to and in the name of the registered holder:
--------------------------------------------
(Name)
--------------------------------------------
(Street Address)
--------------------------------------------
(City, State and Zip Code)
52
SCHEDULE OF EXCHANGES(2)
The following exchanges, redemptions, repurchases or conversions of a
part of this Global Security for Definitive Debentures have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Security authorized
Principal Amount of Principal Amount of following such decrease signatory of
Date of Exchange this Global Security this Global Security (or increase) Trustee
-------------------- --------------------- ----------------------- ------------------------- -------------
--------------------
(2) This schedule should be included only if the Debenture is issued in
global form.