EXHIBIT 4.1
EXECUTION COPY
JAKKS PACIFIC, INC., as Issuer,
and
▇▇▇▇▇ FARGO BANK, N.A., as Trustee
INDENTURE
Dated as of June 9, 2003
$98,000,000
Convertible Senior Notes due 2023
TABLE OF CONTENTS
PAGE
Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................... 1
Section 101. Definitions...................................................................... 1
"Affiliate"................................................................................... 3
"Applicable Procedures"....................................................................... 3
"Bankruptcy Law".............................................................................. 3
"Bid Solicitation Agent"...................................................................... 3
"Board of Directors".......................................................................... 3
"Board Resolution"............................................................................ 3
"Business Day"................................................................................ 3
"Calendar Quarter"............................................................................ 4
"Cash Equivalents"............................................................................ 4
"Code"........................................................................................ 4
"Commission".................................................................................. 4
"Common Stock"................................................................................ 4
"Company"..................................................................................... 4
"Company Request"............................................................................. 4
"Contingent Interest"......................................................................... 5
"Conversion Agent"............................................................................ 5
"Conversion Rate"............................................................................. 5
"Conversion Value"............................................................................ 5
"Corporate Trust Office"...................................................................... 5
"Default"..................................................................................... 5
"Depositary".................................................................................. 5
"Disqualified Equity Interests"............................................................... 5
"Equity Interest"............................................................................. 5
"Event of Default"............................................................................ 5
"Exchange Act"................................................................................ 5
"Ex-Dividend Time"............................................................................ 6
"Fair Market Value"........................................................................... 6
"Five-Trading-Day Measurement Period"......................................................... 6
"Fundamental Change".......................................................................... 6
"Generally Accepted Accounting Principles" or "GAAP".......................................... 7
"Global Security"............................................................................. 7
"Holder"...................................................................................... 7
"Indebtedness"................................................................................ 7
"Indenture"................................................................................... 8
"Indenture Obligations"....................................................................... 8
"Initial Purchaser"........................................................................... 8
"Interest Payment Date"....................................................................... 8
"Issue Date".................................................................................. 8
"Lien" ..................................................................................... 8
"Maturity".................................................................................... 9
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TABLE OF CONTENTS
(continued)
PAGE
"▇▇▇▇▇'▇"..................................................................................... 9
"Officers' Certificate"....................................................................... 9
"Opinion of Counsel".......................................................................... 9
"Opinion of Independent Counsel".............................................................. 9
"Outstanding"................................................................................. 9
"Paying Agent"................................................................................ 10
"Person"...................................................................................... 10
"Predecessor Security"........................................................................ 10
"Preferred Equity Interest"................................................................... 10
"Principal Accretion"......................................................................... 10
"Principal Amount at Issuance"................................................................ 11
"Prospectus".................................................................................. 11
"Redemption Date"............................................................................. 11
"Redemption Price"............................................................................ 12
"Registration Rights Agreement"............................................................... 12
"Registration Statement"...................................................................... 12
"Regular Record Date"......................................................................... 12
"Responsible Officer"......................................................................... 12
"Restricted Securities Legend"................................................................ 12
"Restricted Securities Transfer Certificate".................................................. 12
"Restricted Security"......................................................................... 12
"Rule 144A"................................................................................... 12
"Rule 144A Global Securities"................................................................. 12
"Rule 144A Information"....................................................................... 12
"Sale Price".................................................................................. 12
"S&P" ..................................................................................... 13
"Securities".................................................................................. 13
"Securities Act".............................................................................. 13
"Security Price".............................................................................. 13
"Security Register" and "Security Registrar".................................................. 13
"Shelf Registration Statement"................................................................ 14
"Special Record Date"......................................................................... 14
"Stated Maturity"............................................................................. 14
"Subsidiary".................................................................................. 14
"Successor Security".......................................................................... 14
"Tax Original Issue Discount"................................................................. 14
"Temporary Cash Investments".................................................................. 14
"Trading Day"................................................................................. 15
"Trust Indenture Act"......................................................................... 15
"Trustee"..................................................................................... 15
"Voting Stock"................................................................................ 15
"Wholly-Owned Subsidiary"..................................................................... 15
Section 102. Other Definitions................................................................ 15
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TABLE OF CONTENTS
(continued)
PAGE
Section 103. Compliance Certificates and Opinions............................................. 16
Section 104. Form of Documents Delivered to Trustee........................................... 16
Section 105. Acts of Holders.................................................................. 17
Section 106. Notices, etc., to Trustee and the Company........................................ 18
Section 107. Notice to Holders; Waiver........................................................ 19
Section 108. Conflict with Trust Indenture Act................................................ 19
Section 109. Effect of Headings and Table of Contents......................................... 19
Section 110. Successors and Assigns........................................................... 19
Section 111. Separability Clause.............................................................. 19
Section 112. Benefits of Indenture............................................................ 20
Section 113. Governing Law.................................................................... 20
Section 114. Legal Holidays................................................................... 20
Section 115. Schedules and Exhibits........................................................... 20
Section 116. Counterparts..................................................................... 20
Article Two SECURITY FORMS.......................................................................... 20
Section 201. Forms Generally.................................................................. 20
Section 202. Form of Face of Security......................................................... 21
Section 203. Form of Reverse of Securities.................................................... 25
Section 204. Form of Trustee's Certificate of Authentication.................................. 33
Article Three THE SECURITIES.......................................................................... 34
Section 301. Title and Terms.................................................................. 34
Section 302. Denominations.................................................................... 35
Section 303. Execution, Authentication, Delivery and Dating................................... 35
Section 304. Temporary Securities............................................................. 36
Section 305. Global Securities................................................................ 36
Section 306. Registration, Registration of Transfer and Exchange.............................. 38
Section 307. Special Transfer Provisions...................................................... 40
Section 308. Mutilated, Destroyed, Lost and Stolen Securities................................. 41
Section 309. Payment of Interest; Interest Rights Preserved................................... 42
Section 310. Persons Deemed Owners............................................................ 43
Section 311. Cancellation..................................................................... 43
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TABLE OF CONTENTS
(continued)
PAGE
Section 312. Computation of Interest.......................................................... 44
Section 313. CUSIP Numbers.................................................................... 44
Article Four CONVERSION.............................................................................. 44
Section 401. Conversion Privilege............................................................. 44
Section 402. Conversion Procedures............................................................ 48
Section 403. Fractional Shares................................................................ 51
Section 404. Taxes on Conversion.............................................................. 51
Section 405. Company to Provide Stock......................................................... 51
Section 406. Adjustment of Conversion Rate.................................................... 51
Section 407. No Adjustment.................................................................... 56
Section 408. Adjustment for Tax Purposes...................................................... 56
Section 409. Notice of Adjustment............................................................. 57
Section 410. Notice of Certain Transactions................................................... 57
Section 411. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege............................................................. 57
Section 412. Trustee's Disclaimer............................................................. 58
Section 413. Voluntary Increase............................................................... 59
Section 414. Rights Issued in Respect of Common Stock Issued Upon Conversion.................. 59
Article Five REMEDIES................................................................................ 59
Section 501. Events of Default................................................................ 59
Section 502. Acceleration of Maturity; Rescission and Annulment............................... 61
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................. 62
Section 504. Trustee May File Proofs of Claim................................................. 63
Section 505. Trustee May Enforce Claims without Possession of Securities...................... 64
Section 506. Application of Money Collected................................................... 64
Section 507. Limitation on Suits.............................................................. 65
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest........ 65
Section 509. Restoration of Rights and Remedies............................................... 66
Section 510. Rights and Remedies Cumulative................................................... 66
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TABLE OF CONTENTS
(continued)
PAGE
Section 511. Delay or Omission Not Waiver..................................................... 66
Section 512. Control by Holders............................................................... 66
Section 513. Waiver of Past Defaults.......................................................... 67
Section 514. Undertaking for Costs............................................................ 67
Section 515. Waiver of Stay, Extension or Usury Laws.......................................... 67
Article Six THE TRUSTEE............................................................................. 68
Section 601. Notice of Defaults............................................................... 68
Section 602. Certain Rights of Trustee........................................................ 68
Section 603. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.................................... 69
Section 604. Trustee and Agents May Hold Securities; Collections; etc......................... 70
Section 605. Money Held in Trust.............................................................. 70
Section 606. Compensation and Indemnification of Trustee, Conversion
Agent and Bid Solicitation Agent and the Trustee's Prior
Claim............................................................................ 70
Section 607. Conflicting Interests............................................................ 72
Section 608. Corporate Trustee Required; Eligibility.......................................... 72
Section 609. Resignation and Removal; Appointment of Successor Trustee........................ 72
Section 610. Acceptance of Appointment by Successor........................................... 74
Section 611. Merger, Conversion, Consolidation or Succession to Business...................... 74
Section 612. Preferential Collection of Claims Against Company................................ 75
Article Seven HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................... 75
Section 701. Company to Furnish Trustee Names and Addresses of Holders........................ 75
Section 702. Disclosure of Names and Addresses of Holders..................................... 75
Section 703. Reports by Trustee............................................................... 76
Section 704. Reports by Company............................................................... 76
Article Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................... 77
Section 801. Company May Consolidate, etc., Only on Certain Terms............................. 77
Section 802. Successor Substituted............................................................ 78
Article Nine SUPPLEMENTAL INDENTURES................................................................. 78
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TABLE OF CONTENTS
(continued)
PAGE
Section 901. Supplemental Indentures and Agreements without Consent of Holders................ 78
Section 902. Supplemental Indentures and Agreements with Consent of Holders................... 79
Section 903. Execution of Supplemental Indentures and Agreements.............................. 80
Section 904. Effect of Supplemental Indentures................................................ 81
Section 905. Conformity with Trust Indenture Act.............................................. 81
Section 906. Reference in Securities to Supplemental Indentures............................... 81
Section 1001. Payment of Principal, Premium and Interest....................................... 81
Section 1002. Maintenance of Office or Agency.................................................. 81
Section 1003. Money for Security Payments to Be Held in Trust.................................. 82
Section 1004. Corporate Existence.............................................................. 83
Section 1005. Payment of Taxes and Other Claims................................................ 83
Section 1006. Maintenance of Properties........................................................ 84
Section 1007. Insurance........................................................................ 84
Section 1008. Provision of Financial Statements................................................ 84
Section 1009. Statement by Officers as to Default.............................................. 85
Section 1010. Waiver of Certain Covenants...................................................... 86
Article Eleven REDEMPTION OF SECURITIES................................................................ 86
Section 1101. Rights of Redemption............................................................. 86
Section 1102. Applicability of Article......................................................... 87
Section 1103. Election to Redeem; Notice to Trustee............................................ 87
Section 1104. Selection by Trustee of Securities to Be Redeemed................................ 88
Section 1105. Notice of Redemption............................................................. 88
Section 1106. Deposit of Redemption Price...................................................... 89
Section 1107. Securities Payable on Redemption Date............................................ 90
Section 1108. Securities Redeemed or Purchased in Part......................................... 90
Section 1109. Conversion Arrangement on Call for Redemption.................................... 90
Article Twelve RANKING................................................................................. 91
Section 1201. Ranking.......................................................................... 91
Article Thirteen SATISFACTION AND DISCHARGE.............................................................. 91
Section 1301. Satisfaction and Discharge of Indenture.......................................... 91
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TABLE OF CONTENTS
(continued)
PAGE
Section 1302. Reinstatement.................................................................... 92
Section 1303. Officers' Certificate; Opinion of Counsel....................................... 93
Article Fourteen REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE............. 93
Section 1401. Fundamental Change Put........................................................... 93
Section 1402. Effect of Fundamental Change Repurchase Notice................................... 96
Section 1403. Deposit of Fundamental Change Repurchase Price................................... 96
Section 1404. Securities Purchased in Part..................................................... 97
Section 1405. Compliance with Securities Laws Upon Purchase of Securities...................... 97
Section 1406. Repayment to the Company......................................................... 98
Article Fifteen REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS....................................... 98
Section 1501. Optional Put.................................................................... 98
Section 1502. Effect of Optional Repurchase Notice............................................ 102
Section 1503. Deposit of Optional Repurchase Price............................................ 103
Section 1504. Securities Purchased in Part.................................................... 104
Section 1505. Compliance with Securities Laws Upon Purchase of Securities..................... 104
Section 1506. Repayment to the Company........................................................ 104
Section 1507. Covenants of the Company........................................................ 105
Section 1508. Procedure upon Repurchase....................................................... 105
Section 1509. Taxes........................................................................... 105
Article Sixteen CONTINGENT INTEREST.................................................................... 105
Section 1601. Contingent Interest............................................................. 105
Section 1602. Payment of Contingent Interest; Contingent Interest Rights Preserved............ 106
Section 1603. Bid Solicitation Agent.......................................................... 106
Article Seventeen TAX TREATMENT.......................................................................... 107
Section 1701. Tax Treatment................................................................... 107
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SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A Form of Restricted Securities Transfer Certificate
EXHIBIT B Form of Unrestricted Securities Certificate
cxxii
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 20, 2003
Trust Indenture Indenture
Act Section Section
------------------------------- -------------------
Section 310 (a) ............................................. 610, 611
(a)(1) ............................................. 608
(a)(2) ............................................. 608
(b) ............................................. 607, 609
Section 311 (a) ............................................. 612
Section 312 (a) ............................................. 701
(b) ............................................. 702
(c) ............................................. 702
Section 313 (a) ............................................. 703
(c) ............................................. 703, 704
Section 314 (a) ............................................. 704
(a)(4) ............................................. 1021
(c)(1) ............................................. 103
(c)(2) ............................................. 103
(e) 103
Section 315 (a) ............................................. 602, ▇▇▇
(▇) ▇▇▇, ▇▇▇, ▇▇▇
(▇) ▇▇▇, ▇▇▇
(▇) 602, 903
(e) ............................................. 514
Section 316 (a)(last sentence) ............................................. 101
(a)(1)(A) ............................................. ("Outstanding")
(a)(1)(B) ............................................. 502, 512
(b) ............................................. 513
(c) ............................................. 508
105
Section 317 (a)(1) ............................................. 503
(a)(2) ............................................. 504
(b) ............................................. 1003
Section 318 (a) ............................................. 108
-----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Indenture.
-cxxiii-
INDENTURE, dated as of June 9, 2003, between JAKKS Pacific,
Inc., a Delaware corporation, and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
Convertible Senior Notes due 2023 (the "Securities," each one a "Security") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture and the Securities.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and (ii) this Indenture a valid agreement of the Company in accordance with the
terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to $, US$, dollars or United States
dollars shall refer to the lawful currency of the United States of America.
"Accreted Conversion Price per Share" as of any day is an
amount equal to the Accreted Principal Amount of a Security on that day, divided
by the number of shares of Common Stock issuable upon conversion of a Security
on that day based on the then-applicable Conversion Rate.
"Accreted Principal Amount" of a Security as of any day is an
amount equal to the sum of (i) the Principal Amount at Issuance of such Security
plus (ii) the accrued Principal Accretion on such Security on such date. For
purposes of clarity, the Accreted Principal Amount of each $1,000 in Principal
Amount at Issuance of the Securities on the following dates is set forth below
(and the Accreted Principal Amount between the dates listed below will include
an additional amount reflecting the additional Principal Accretion that has
accrued on such Securities since the immediately preceding date on the table):
(3)
(1) (2) Accreted
Principal Amount Accrued Principal Principal Amount
Redemption Date at Issuance Accretion (1)+(2)
June 15, 2010 $1,000.00 $0.00 $1,000.00
December 15, 2010 $1,000.00 $23.13 $1,023.13
June 15, 2011 $1,000.00 $46.78 $1,046.78
December 15, 2011 $1,000.00 $70.99 $1,070.99
June 15, 2012 $1,000.00 $95.76 $1,095.76
December 15, 2012 $1,000.00 $121.10 $1,121.10
June 15, 2013 $1,000.00 $147.02 $1,147.02
December 15, 2013 $1,000.00 $173.55 $1,173.55
June 15, 2014 $1,000.00 $200.69 $1,200.69
December 15, 2014 $1,000.00 $228.45 $1,228.45
June 15, 2015 $1,000.00 $256.86 $1,256.86
December 15, 2015 $1,000.00 $285.93 $1,285.93
June 15, 2016 $1,000.00 $315.66 $1,315.66
December 15, 2016 $1,000.00 $346.09 $1,346.09
June 15, 2017 $1,000.00 $377.22 $1,377.22
December 15, 2017 $1,000.00 $409.06 $1,409.06
June 15, 2018 $1,000.00 $441.65 $1,441.65
December 15, 2018 $1,000.00 $474.99 $1,474.99
June 15, 2019 $1,000.00 $509.09 $1,509.09
December 15, 2019 $1,000.00 $543.99 $1,543.99
June 15, 2020 $1,000.00 $579.70 $1,579.70
December 15, 2020 $1,000.00 $616.23 $1,616.23
June 15, 2021 $1,000.00 $653.60 $1,653.60
December 15, 2021 $1,000.00 $691.84 $1,691.84
June 15, 2022 $1,000.00 $730.97 $1,730.97
2
(3)
(1) (2) Accreted
Principal Amount Accrued Principal Principal Amount
Redemption Date at Issuance Accretion (1)+(2)
December 15, 2022 $1,000.00 $771.00 $1,771.00
June 15, 2023 $1,000.00 $811.95 $1,811.95
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any other
Person that owns, directly or indirectly, 5% or more of such Person's Equity
Interests or any officer or director of any such Person or other Person or, with
respect to any natural Person, any Person having a relationship with such Person
or other Person by blood, marriage or adoption not more remote than first cousin
or (iii) any other Person 10% or more of the voting Equity Interests of which
are beneficially owned or held directly or indirectly by such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interests therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect at the time of such
transfer or transaction.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Bid Solicitation Agent" means the bid solicitation agent
selected by the Company (which may be the Trustee if the Trustee consents to
accept such position) or any replacement designated by the Company.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors of such entity and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York, the State of Delaware or the city in which the Corporate Trust Office is
located are authorized or obligated by law or executive order to close.
3
"Calendar Quarter" means a three month period ending on March
31, June 30, September 30 or December 31.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of one year or less from the date of acquisition issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of one year or less from the date of acquisition
of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of one year or less from
the date of acquisition issued by a corporation that is not an Affiliate of the
Company organized under the laws of any state of the United States or the
District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or
higher) according to Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital
and surplus in excess of $500,000,000; and (v) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means the common stock of the Company, $.001
par value per share, as it exists on the date of this Indenture and any shares
of any class or classes of Equity Interests of the Company resulting from any
reclassification or reclassifications thereof.
"Company" means JAKKS Pacific, Inc., a corporation
incorporated under the laws of Delaware, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its Vice Chairman, its President or a Vice President (regardless of vice
presidential designation), and by any one of its Chief Financial Officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
4
"Contingent Interest" has the meaning specified in the form of
Security set forth in Section 202.
"Conversion Agent" means ▇▇▇▇▇ Fargo Bank, N.A., or any
alternative or additional conversion agent designated by the Company or any
replacement designated by the Company.
"Conversion Rate" means the number of shares of Common Stock
into which each $1,000 of Principal Amount at Issuance of Securities is
convertible, which is initially fifty (50) shares, subject to adjustments as set
forth in this Indenture.
"Conversion Value" means the product of the Sale Price of a
share of Common Stock on any given day times the then current Conversion Rate.
"Corporate Trust Office" means the office of the Trustee or an
Affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at ▇▇▇▇▇
Fargo Bank, National Association, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department.
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in
the form of Global Securities, if any, The Depository Trust Company, a New York
limited purpose corporation, its nominees and successors, or any other Person
designated as the Depositary by the Company pursuant to Section 305(b), in each
case registered as a "clearing agency" under the Exchange Act and maintaining a
book-entry system that qualifies for treatment as "registered form" under
Section 163(f) of the Code.
"Disqualified Equity Interests" means any Equity Interests
that, either by their terms or by the terms of any security into which they are
convertible or exchangeable or otherwise, are, or upon the happening of an event
or passage of time would be, required to be redeemed prior to any Stated
Maturity of the principal of the Securities or are redeemable at the option of
the holder thereof at any time prior to any such Stated Maturity (other than
upon a Fundamental Change or sale of assets by the Company in circumstances
where the holders of the Securities would have similar rights), or are
convertible into or exchangeable for debt securities at any time prior to any
such Stated Maturity at the option of the holder thereof.
"Equity Interest" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, of such Person, including any Preferred Equity Interests.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
5
"Ex-Dividend Time" means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the shares of
Common Stock trade regular way on the principal securities market on which the
shares of Common Stock are then traded without the right to receive such
issuance or distribution.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"Five-Trading-Day Measurement Period" means the five Trading
Days ending on the second Trading Day immediately preceding the first day of the
applicable Contingent Interest Period.
"Fundamental Change" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have beneficial ownership of all shares that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total outstanding Voting Stock of the Company, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election to such Board or whose nomination for election by the shareholders of
the Company, was approved by a vote of at least 66-2/3% of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of such Board of Directors then in office;
(iii) the Company consolidates with or merges with or into any Person or
conveys, transfers or leases all or substantially all of its assets to any
Person, or any corporation consolidates with or merges into or with the Company,
in any such event pursuant to a transaction in which the outstanding Voting
Stock of the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where the outstanding Voting Stock of
the Company is not changed or exchanged at all (except to the extent necessary
to reflect a change in the jurisdiction of incorporation of the Company) or
where (A) the outstanding Voting Stock of the Company is changed into or
exchanged for (x) Voting Stock of the surviving corporation which is not
Disqualified Equity Interests or (y) cash, securities and other property (other
than Equity Interests of the surviving corporation) and (B) no "person" or
"group" owns immediately after such transaction, directly or indirectly, more
than 50% of the total outstanding Voting Stock of the surviving corporation,
(iv) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with the provisions
described under Article Eight; or (v) the Company's Common Stock ceases to be
listed on a national securities exchange or quoted on the Nasdaq National Market
or another established automated over-the-counter trading market in the United
States.
6
A Fundamental Change will not be deemed to have occurred if
either:
(1) the last Sale Price of the Common Stock for
any five Trading Days within:
(i) the period of the ten consecutive Trading
Days immediately after the later of the Fundamental Change or
the public announcement of the Fundamental Change, in the case
of a Fundamental Change resulting solely from a Fundamental
Change in clause (i) of the definition of Fundamental Change;
or
(ii) the period of the ten consecutive Trading
Days immediately preceding the Fundamental Change, in the case
of a Fundamental Change resulting from a Fundamental Change in
clauses (ii), (iii) or (iv) of the definition of Fundamental
Change,
is at least equal to 105% of the quotient where the numerator is the Accreted
Principal Amount and the denominator is the Conversion Rate in effect on such
Trading Day; or
(2) in the case of a merger or consolidation, at
least 95% of the consideration, excluding cash payments for fractional
shares in the merger or consolidation constituting the Fundamental
Change, consists of common stock traded on a United States national
securities exchange or quoted on the Nasdaq National Market (or which
will be so traded or quoted when issued or exchanged in connection with
such Fundamental Change) and as a result of such transaction or
transactions the Securities become convertible solely into such common
stock.
For purposes of clarification, a "Fundamental Change" will not
be deemed to occur solely as a result of the transfer of all or substantially
all of the Company's assets to a Wholly-Owned Subsidiary of the Company where
that Subsidiary assumes all or substantially all of the Indebtedness of the
Company (other than the Securities).
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect on the date of this Indenture.
"Global Security" means a Security in book-entry form in the
form prescribed in Sections 202 through 204 evidencing all or part of the
Securities, issued to the Depositary or its nominee and registered in the name
of the Depositary or such nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all obligations for borrowed money, (ii) all obligations
evidenced by notes or other similar instruments, (iii) all obligations in
respect of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto) (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the
7
ordinary course of business, (v) all obligations as lessee which are capitalized
in accordance with GAAP, and (vi) all Indebtedness of others guaranteed by the
Company or any of its Subsidiaries or for which the Company or any of its
Subsidiaries is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others). The amount of
Indebtedness of any Person at any date shall be, without duplication, the
principal amount that would be shown on a balance sheet of such Person prepared
as of such date in accordance with GAAP and the maximum determinable liability
of any Indebtedness guaranteed by such Person at such date.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the Securities, to pay
principal, Principal Amount at Issuance, Principal Accretion, Accreted Principal
Amount, and interest (including Contingent Interest and Additional Amounts, if
any) when due and payable, and all other amounts due or to become due under or
in connection with this Indenture, the Securities and the performance of all
other obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the terms hereof and thereof.
"Initial Purchaser" means Bear, ▇▇▇▇▇▇▇ & Co. Inc as initial
purchaser of the Securities.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means June 9, 2003.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind (including any conditional sale
or other title retention agreement, any leases in the nature thereof, and any
agreement to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired.
"Market Price" as of any date of determination means the
average of the Sale Prices of the shares of Common Stock for the five Trading
Day period ending on (if the third Business Day prior to the applicable date of
determination is a Trading Day, or if not, then on the last Trading Day prior
to), the third Business Day prior to the applicable Optional Repurchase Date
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such Trading Days during such five Trading Day period
and ending on such date of determination, of any event described in Section 406;
subject, however, to the conditions set forth in Section 407.
8
"Maturity" when used with respect to any Security, means the
date on which the Accreted Principal Amount of such Security becomes due and
payable as therein provided or as provided in this Indenture, whether at Stated
Maturity or a Redemption Date and whether by declaration of acceleration,
Fundamental Change, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor rating agency.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President or a Vice President
(regardless of vice presidential designation), and by the Chief Financial
Officer, Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Trustee, unless an Opinion of Independent
Counsel is required pursuant to the terms of this Indenture, and who shall be
acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel issued by someone who is not an employee or consultant of the Company
and who shall be acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption, money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company or any Affiliate
thereof) in trust or set aside and segregated in trust by the Company or such
Affiliate (if the Company or such Affiliate shall act as the Paying Agent) for
the Holders; provided that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
reasonably satisfactory to the Trustee has been made; and
(c) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser or protected purchaser in whose
hands the Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite Principal Amount at
Issuance of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
9
may be regarded as Outstanding if the pledgee establishes to the reasonable
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor. If the Paying
Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day following the Optional Repurchase Date, Fundamental Change
Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Principal Accretion or any cash interest (including
Contingent Interest and Additional Amounts) on such Securities shall cease to
accrue; provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture. If a Security is
converted in accordance with the Indenture, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be Outstanding
and Principal Accretion or cash interest (including Contingent Interest and
Additional Amounts) shall cease to accrue on such Security.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Equity Interest" as applied to the Equity Interest
of any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such person, over Equity Interests of any other
class of such Person.
"Principal Accretion" of any Security as of any day means the
accretion beginning on June 15, 2010 on such Security in an amount that is
calculated so that, the resulting yield to Maturity on such Security is 4.625%
per year (calculated on a semi-annual bond equivalent basis using a 360-day year
comprised of twelve 30 day months) taking into account the 4.625% cash interest
payable on the Securities until June 15, 2010. For purposes of clarity, the
Principal Accretion for every $1,000 of Principal Amount at Issuance of the
Securities on the dates listed below is set forth below (and the Principal
Accretion between the dates listed below will include an additional amount
reflecting the additional Principal Accretion that has accrued on such
Securities since the immediately preceding date on the table).
10
Accrued Principal Accretion
Redemption Date per $1,000 Note
June 15, 2010 $0.00
December 15, 2010 $23.13
June 15, 2011 $46.78
December 15, 2011 $70.99
June 15, 2012 $95.76
December 15, 2012 $121.10
June 15, 2013 $147.02
December 15, 2013 $173.55
June 15, 2014 $200.69
December 15, 2014 $228.45
June 15, 2015 $256.86
December 15, 2015 $285.93
June 15, 2016 $315.66
December 15, 2016 $346.09
June 15, 2017 $377.22
December 15, 2017 $409.06
June 15, 2018 $441.65
December 15, 2018 $474.99
June 15, 2019 $509.09
December 15, 2019 $543.99
June 15, 2020 $579.70
December 15, 2020 $616.23
June 15, 2021 $653.60
December 15, 2021 $691.84
June 15, 2022 $730.97
December 15, 2022 $771.00
June 15, 2023 $811.95
"Principal Amount at Issuance" of a Security means the initial
issue price of the Security as set forth on the face of the Security.
"Prospectus" means the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
11
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 9, 2003, between the Company and the Initial
Purchaser, as amended from time to time.
"Registration Statement" means any registration statement of
the Company which covers any of the Securities pursuant to the provisions of the
Registration Rights Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the 30th day (whether or not a Business Day) next preceding
such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or the agent of the
Trustee appointed hereunder, including any vice president, assistant vice
president, assistant secretary, or any other officer or assistant officer of the
Trustee or the agent of the Trustee appointed hereunder to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section 202
to be placed upon a Restricted Security.
"Restricted Securities Transfer Certificate" means a
certificate substantially in the form set forth in Exhibit A.
"Restricted Security" means each Security required pursuant to
Section 306 to bear a Restricted Securities Legend.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Rule 144A under the Securities Act.
"Rule 144A Information" shall be such information with respect
to the Company as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).
"Sale Price" of the shares of Common Stock on any date means:
12
(1) if the shares of Common Stock are listed on
a United States national or regional securities exchange, the closing
per share sale price of Common Stock (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices) on
such date as reported in the composite transactions for the principal
United States securities exchange on which the shares of Common Stock
are traded, or
(2) if the shares of Common Stock are reported
by the Nasdaq National Market, as reported by the National Association
of Securities Dealers Automated Quotation System or its successors.
If the Common Stock is not listed for trading on a United
States national or regional security exchange and not reported by the Nasdaq
National Market on the relevant date, the "Sale Price" will be the last quoted
bid price for the Common Stock in the over-the-counter market on the relevant
date as reported by the National Quotation Bureau or similar organization. If
the Common Stock is not so quoted, the "Sale Price" will be the average of the
mid-point of the last bid and ask prices for the Common Stock on the relevant
date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose. If no Sale Price is
available as described above, the Sale price will be the value of a share of
Common Stock as determined by the Board of Directors (which shall be evidenced
by an Officer's Certificate delivered to the Initial Purchaser at closing).
"S&P" means Standard & Poor's Ratings Services, or any
successor rating agency.
"Securities" has the meaning specified in the Recitals.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Price" on any date of determination means the
average of the secondary market bid quotations for Securities obtained by the
Company or the Bid Solicitation Agent for $5,000,000 Principal Amount at
Issuance of the Securities at approximately 4:00 p.m., New York City time, on
such determination date from three independent nationally recognized securities
dealers selected by the Company, provided that if at least three such bids
cannot reasonably be obtained by the Company, but two such bids are obtained,
then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Company, such bid shall be used. If the Company
cannot reasonably obtain at least one bid for $5,000,000 Principal Amount at
Issuance of the Securities from a nationally recognized securities dealer or if,
in the Company's reasonable judgment, the bid quotations are not indicative of
the secondary market value of the Securities, then the Security Price will equal
(a) the then-applicable Conversion Rate of the Securities multiplied by (b) the
Sale Price of the Common Stock on such determination date. Bids used to
determine the Security Price will be solicited by the Bid Solicitation Agent
from securities dealers that the Company believes are willing to bid for the
Securities.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
13
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the Registration Rights Agreement, which
covers all or a portion of the Registrable Securities (as defined in the
Registration Rights Agreement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon, means the date specified in such
Indebtedness as the fixed date on which the principal (or Accreted Principal
Amount, if applicable) of such Indebtedness or such installment of interest
(including Contingent Interest and Additional Amounts) is due and payable.
"Subsidiary" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security. For the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Tax Original Issue Discount" means the amount of ordinary
interest income on a Security that must be accrued as original issue discount
for United States federal income tax purposes pursuant to Treas. Reg. Sec.
1.1275-4.
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, or an instrumentality or agency thereof
and guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not more
than one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution (including the Trustee) that is a member of the
Federal Reserve System and that has combined capital and surplus and undivided
profits of not less than $500,000,000, whose debt has a rating, at the time as
of which any investment therein is made, of "P-1" (or higher) according to
▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P, (iii) commercial paper, maturing
not more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company) (including the Trustee)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P and (iv) any
money market deposit accounts issued or offered by a domestic commercial bank
(including the Trustee) having capital and surplus in excess of $500,000,000.
14
"Trading Day" means a day on which the Common Stock: (i) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market as of the close of business, and (ii) had
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Voting Stock" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Wholly-Owned Subsidiary" means a Subsidiary all the Equity
Interests of which are owned by the Company or another Wholly-Owned Subsidiary.
Section 102. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 105
"Additional Amounts" 202
"Agent Members" 305 (a)
"Combined ▇▇▇▇▇▇" ▇▇▇ (▇)
"Contingent Interest Payment Date" 1602
"Contingent Interest Period" 1601
"Conversion Date" 402
"Conversion Trigger Price" 401 (a)
"current market price per share" 406 (g)
"Defaulted Interest" 309
"Determination Date" 406 (d)
"Expiration Date" 406 (e)
"Expiration Time" 406 (e)
"Fundamental Change Repurchase Date" 1401(a)
"Fundamental Change Repurchase Notice" 1401(c)
"Fundamental Change Repurchase Price" 1401
"Optional Repurchase Date" 1501
"Optional Repurchase Notice" 1501
"Optional Repurchase Price" 1501
"Physical Securities" 305
"Purchased Shares" 406 (e)
15
"Required Filing Dates" 1008
"Surviving Entity" 801(a)
"tender offer" 406(f)
"tendered shares" 406(f)
"Triggering Distribution" 406(d)
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
other obligor on the Securities shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or
other obligor of the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
16
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or
other obligor of the Securities stating that the information with respect to
such factual matters is in the possession of the Company or other obligor of the
Securities, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
(which may take the form of an electronic writing or messaging or otherwise be
in accordance with customary procedures of the Depositary or the Trustee) of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing (which may be in electronic form); and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture, if made in the manner provided
in this Section. The fact and date of the execution by any person of any such
instrument or writing or the authority of the person executing the same, may
also be proved in any other manner which the Trustee deems sufficient in
accordance with such reasonable rules as the Trustee may determine.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof, in respect
of anything done, suffered or omitted to be done by the Trustee, any Paying
Agent or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by
17
or pursuant to a Board Resolution, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding Trust Indenture Act Section
316(c), any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior to
the first solicitation of Holders generally in connection therewith and no later
than the date such solicitation is completed.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf of
the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Trustee shall have no obligation to do so. Any such record date shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than a date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 106. Notices, etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any
other obligor of the Securities shall be sufficient for every purpose hereunder
if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to or with the Trustee at the Corporate Trust
Office, Attention: Corporate Trust Division, or at any other address previously
furnished in writing to the Holders, the Company, any other obligor of the
Securities, by the Trustee; or
(b) the Company shall be sufficient for every purpose
(except as provided in Section 501(c)) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company addressed to it at JAKKS Pacific, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: President, or at any other address
previously furnished in writing to the Trustee by the Company.
18
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
19
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders) any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity or other payment date of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal or premium, if any, need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity or other payment date, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity, or other payment date to the
next succeeding Business Day.
Section 115. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 116. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently
20
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more Rule 144A Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance with
the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or its nominee, in each case for credit to an account of a direct or
indirect participant of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Rule 144A Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
The terms and provisions contained in the form of Securities
set forth in Sections 202 through 204 shall constitute, and are expressly made,
a part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Section 202. Form of Face of Security.
(a) The form of the face of any Security authenticated
and delivered hereunder shall be substantially as follows.
All Securities which are Global Securities must contain the
Global Securities legend provided below. Unless and until a Security is sold
under an effective Registration Statement pursuant to the Registration Rights
Agreement, then each Security shall bear the legend for Restricted Securities
provided below on the face thereof. In addition, all Securities must contain the
tax legend identified below.
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT THE FOLLOWING LEGEND] -- THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND 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
21
THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[IF THIS SECURITY IS A RESTRICTED SECURITY INSERT THE FOLLOWING LEGEND (THE
"RESTRICTED SECURITIES LEGEND")] -- THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER
IS (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE HOLDER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH
OF THE FOREGOING CASES, SUBJECT TO A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS SECURITY BEING COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE THEN HOLDER OF
THIS SECURITY AFTER THE RESALE RESTRICTION TERMINATION DATE.
22
[ALL SECURITIES MUST INCLUDE THE FOLLOWING TAX LEGEND] THE COMPANY AGREES, AND
BY ACCEPTANCE OF BENEFICIAL OWNERSHIP INTEREST IN THE SECURITIES EACH BENEFICIAL
HOLDER OF SUCH SECURITIES WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES (1) TO TREAT THE SECURITIES AS INDEBTEDNESS THAT IS
SUBJECT TO TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS") AND,
FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, TO TREAT THE FAIR MARKET
VALUE OF ANY STOCK BENEFICIALLY RECEIVED BY A BENEFICIAL HOLDER UPON ANY
CONVERSION OR REPURCHASE OF SUCH SECURITIES AS A CONTINGENT PAYMENT AND (2) TO
BE BOUND BY THE COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED
PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS,
WITH RESPECT TO THE SECURITIES. A HOLDER OF SECURITIES MAY OBTAIN THE ISSUE
PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD TO MATURITY,
COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR SUCH SECURITIES BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE COMPANY AT THE
FOLLOWING ADDRESS: JAKKS PACIFIC, INC., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, ATTENTION: CHIEF FINANCIAL OFFICER.
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
Cusip No.:▇▇▇▇▇▇▇▇▇
No: _______________ $___________
JAKKS PACIFIC, INC., a corporation duly existing and qualified under
the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, on
June 15, 2023, the Accreted Principal Amount of this Security on such date. For
the sake of clarity, the Accreted Principal Amount of this Security on June 15,
2023 will be $1,811.95 for every $1,000.00 of Principal Amount at Issuance of
this Security, which, assuming that the Principal Amount at Issuance of this
Security is $98,000,000.00, is $177,571,100.00. The Principal Amount at Issuance
of this Security is $98,000,000.00.
In addition, for value received, the Company hereby promises
to pay to Cede & Co., or registered assigns, (i) from June 9, 2003, or from the
most recent Interest Payment Date to which interest has been paid or provided
for, to, but not including June 15, 2010, cash interest at an annual rate of
4.625% of the Principal Amount at Issuance and (ii) from and after June 15, 2010
no cash interest shall be paid. Cash interest on this Security is payable
semi-annually in arrears on June 15 and December 15 in each year, with the first
Interest Payment Date being December 15, 2003, and will be computed on the basis
of a 360-day year comprised of twelve 30-day months. Each payment of cash
interest on this Security will include interest accrued through the day before
the applicable Interest Payment Date (or Optional Repurchase Date,
23
Fundamental Change Repurchase Date, Redemption Date or, in certain
circumstances, Conversion Date, as the case may be).
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
Defaulted Interest at the interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Subject to the conditions of the Indenture and the accrual and record
date provisions specified below, the Company shall pay contingent interest
("Contingent Interest") to the Holders during any six-month period from June 15
to December 14 and from December 15 to June 14, commencing with the six-month
period beginning June 15, 2010, if the average Security Price for the
Five-Trading-Day Measurement Period with respect to such six month period equals
120% or more of the Accreted Principal Amount of such Securities to, but
excluding, the day immediately preceding the first day of the relevant six month
period. Contingent Interest will be paid only in cash.
Contingent Interest, if any, will accrue from June 15 or December 15,
as applicable, and will be payable on the next succeeding Interest Payment Date.
Contingent Interest will be paid to the Person in whose name a Security is
registered on the next preceding Regular Record Date on which Contingent
Interest is payable.
The amount of Contingent Interest payable per Security in respect of
any six-month period will equal 0.375% per annum of the average Security Price
for the Five-Trading-Day Measurement Period.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of June 9, 2003, between the Company and
the Initial Purchaser, including the provisions contained therein regarding the
payment of Additional Amounts (as defined therein). Any Additional Amounts due
pursuant to the Registration Rights Agreement will be payable in cash on the
Interest Payment Dates related to the Securities. The Additional Amounts will be
determined by multiplying the applicable Additional Amounts rate by the Accreted
Principal Amount of the Securities, multiplied by a fraction the numerator of
which is the number of days such Additional Amounts rate was applicable during
the period, and the denominator of which is 360.
24
Payment of the Accreted Principal Amount (including Contingent Interest
and Additional Amounts) and interest on this Security will be made at the office
or agency of the Company maintained for that purpose, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear on the Security Register.
If any of the Securities are held by the Depositary, payments of interest
(including Contingent Interest and Additional Amounts) to the Depositary may be
made by wire transfer to the Depositary.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
All references in this Security or in the Indenture to "interest" or
"accrued and unpaid interest" shall be deemed to include, to the extent
applicable, a reference to Additional Amounts and Contingent Interest.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
Dated: June 9, 2003 JAKKS PACIFIC, INC.
By:_____________________________
Attest:
___________________________
Secretary
Section 203. Form of Reverse of Securities.
The form of the reverse of the Securities shall be
substantially as follows:
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
25
1. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company designated as its Convertible Senior Notes due 2023 (herein called the
"Securities"), limited in Principal Amount at Issuance to $98,000,000, which may
be issued under an indenture (herein called the "Indenture"), dated as of June
9, 2003, between the Company and ▇▇▇▇▇ Fargo Bank, National Association, as
trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Indenture does
not limit other Indebtedness of the Company or its Subsidiaries, secured or
unsecured.
2. Ranking.
This Security constitutes a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured
Indebtedness the Company has incurred or may incur, ranking senior in right of
payment to any future Indebtedness that is expressly made subordinate to the
Securities and ranking subordinate to secured Indebtedness the Company has
incurred.
3. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
subject to redemption for cash in whole or from time to time in part on or after
June 15, 2010, at the option of the Company, on not less than 30 nor more than
60 days' prior notice by first-class mail at a redemption price equal to the
Accreted Principal Amount of the Security so redeemed plus accrued and unpaid
interest (including Contingent Interest and Additional Amounts), if any, to but
excluding the Redemption Date.
The Redemption Prices on June 15, 2010 and on each subsequent December
15 and June 15 thereafter prior to June 15, 2023 and on June 15, 2023 are set
forth in the table below. In addition to the Redemption Prices set forth on such
table, the Redemption Price on any Redemption Date that falls between the dates
listed would be the Accreted Principal Amount as of such Redemption Date plus
accrued and unpaid cash interest (including Contingent Interest and Additional
Amounts) to but excluding the Redemption Date (subject to the right of Holders
of record on relevant Interest Payment Dates to receive interest due on an
Interest Payment Date) that has accrued on a Security since the immediately
preceding date on which interest was paid.
(3)
(1) (2) Accreted
Principal Amount Accrued Principal Principal Amount
Redemption Date at Issuance Accretion (1)+(2)
June 15, 2010 $1,000.00 $ 0.00 $1,000.00
December 15, 2010 $1,000.00 $23.13 $1,023.13
June 15, 2011 $1,000.00 $46.78 $1,046.78
26
(3)
(1) (2) Accreted
Principal Amount Accrued Principal Principal Amount
Redemption Date at Issuance Accretion (1)+(2)
December 15, 2011 $1,000.00 $ 70.99 $1,070.99
June 15, 2012 $1,000.00 $ 95.76 $1,095.76
December 15, 2012 $1,000.00 $121.10 $1,121.10
June 15, 2013 $1,000.00 $147.02 $1,147.02
December 15, 2013 $1,000.00 $173.55 $1,173.55
June 15, 2014 $1,000.00 $200.69 $1,200.69
December 15, 2014 $1,000.00 $228.45 $1,228.45
June 15, 2015 $1,000.00 $256.86 $1,256.86
December 15, 2015 $1,000.00 $285.93 $1,285.93
June 15, 2016 $1,000.00 $315.66 $1,315.66
December 15, 2016 $1,000.00 $346.09 $1,346.09
June 15, 2017 $1,000.00 $377.22 $1,377.22
December 15, 2017 $1,000.00 $409.06 $1,409.06
June 15, 2018 $1,000.00 $441.65 $1,441.65
December 15, 2018 $1,000.00 $474.99 $1,474.99
June 15, 2019 $1,000.00 $509.09 $1,509.09
December 15, 2019 $1,000.00 $543.99 $1,543.99
June 15, 2020 $1,000.00 $579.70 $1,579.70
December 15, 2020 $1,000.00 $616.23 $1,616.23
June 15, 2021 $1,000.00 $653.60 $1,653.60
December 15, 2021 $1,000.00 $691.84 $1,691.84
June 15, 2022 $1,000.00 $730.97 $1,730.97
December 15, 2022 $1,000.00 $771.00 $1,771.00
June 15, 2023 $1,000.00 $811.95 $1,811.95
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed by lot, or in its
discretion, on a pro rata basis or by any other method the Trustee shall deem
fair and reasonable. If any Security is to be redeemed in part only, a new
Security in Principal Amount at Issuance equal to the unredeemed portion of
Principal Amount at Issuance will be issued. If a portion of a Holder's
Securities is selected for partial redemption and such Holder converts a portion
of its Securities, the converted portion will be deemed to be of the portion
selected for redemption.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant record date referred to on the face hereof. Securities (or portions
thereof) whose redemption and payment is made in accordance with the Indenture
shall cease to bear interest from and after the date of redemption.
27
4. Repurchase by the Company at the Option of the Holder.
Each Holder may require the Company to repurchase on June 15, 2010,
June 15, 2013 and June 15, 2018, all or a portion of such Holder's Securities,
at a repurchase price equal to 100% of the Accreted Principal Amount plus any
accrued and unpaid interest (including Contingent Interest and Additional
Amounts) to but excluding the Optional Repurchase Date. Any Securities purchased
on June 15, 2010 will be paid for in cash. Securities purchased on June 15, 2013
and June 15, 2018 may be purchased in cash, shares of Common Stock or a
combination of cash and shares of Common Stock at the Company's option,
provided, however that any accrued and unpaid interest (including Contingent
Interest and Additional Amounts) will be paid in cash.
In addition, upon the occurrence of a Fundamental Change, each Holder
may require the Company to repurchase for cash all or a portion of such Holder's
Securities, at a purchase price in cash equal to the Accreted Principal Amount
on the Fundamental Change Repurchase Date plus any accrued and unpaid interest
(including Contingent Interest and Additional Amounts), if any, to, but
excluding, the date of repurchase. Securities submitted for repurchase must have
a Principal Amount at Issuance equal to $1,000 or multiples of $1,000.
Holders have the right to withdraw any Optional Repurchase Notice or
Fundamental Change Repurchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the provisions of
the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
5. Conversion.
Under the circumstances provided for in, and subject to compliance with
the provisions of, the Indenture, a Holder of a Security may, at such Holder's
option, convert such Security (or any portion thereof equal to $1,000 Principal
Amount at Issuance or multiples of $1,000 in excess thereof) into shares of
Common Stock at the Conversion Rate in effect at the time of conversion;
provided, however, that if the Security is called for redemption pursuant to
Article Eleven of the Indenture or is submitted or presented for repurchase
pursuant to Articles Fourteen or Fifteen of the Indenture, the conversion right
will terminate at the close of business on the second Business Day immediately
preceding the Redemption Date, Optional Repurchase Date or the Fundamental
Change Repurchase Date, as the case may be, for such Security or such earlier
date as the Holder presents such Security for redemption or repurchase (unless
the Company shall default in paying the redemption payment, Optional Repurchase
Price or Fundamental Change Repurchase Price, as the case may be, when due, in
which case the conversion right shall terminate at the close of business on the
date such default is cured and such Security is redeemed or purchased, as the
case may be).
The Company will notify Holders of any event triggering the right to
convert the Security as specified above in accordance with the Indenture.
28
A Security in respect of which a Holder has delivered an Optional
Repurchase Notice or a Fundamental Change Repurchase Notice exercising the
option of such Holder to require the Company to repurchase such Security may be
converted only if such notice is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is fifty (50) shares of Common Stock per
$1,000 Principal Amount at Issuance (with no adjustment provided for any
accretion from and after June 15, 2010), subject to adjustment under certain
circumstances. No fractional shares will be issued upon conversion; in lieu
thereof, an amount will be paid in cash based upon the Sale Price of the Common
Stock on the Trading Day immediately prior to the Conversion Date.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Security to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. The Conversion
Agent may assume that any Holder that delivers a conversion notice is entitled
to convert this Security without independent verification.
A Holder may convert a portion of the Securities of this series only if
the Principal Amount at Issuance of such portion is $1,000 or an integral
multiple of $1,000. No payment or adjustment shall be made for dividends on the
Common Stock except as provided in the Indenture. On conversion of Securities of
this series, that portion of accrued and unpaid interest, including Contingent
Interest and Additional Amounts, if any, and accrued Principal Accretion on such
Securities attributable to the period from the most recent Interest Payment Date
(or, if no Interest Payment Date has occurred, from the original issue date)
through the Conversion Date and Tax Original Issue Discount accrued through the
Conversion Date with respect to such converted Securities shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through delivery of the Common Stock (together with
any cash payment in lieu of fractional shares) in exchange for such Securities
being converted pursuant to the provisions hereof, and the fair market value of
such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for accrued and unpaid interest (including Contingent Interest and
Additional Amounts, if any), accrued Principal Accretion and Tax Original Issue
Discount accrued through the Conversion Date and the balance, if any, of such
fair market value of such Common Stock (and any such cash payment), shall be
treated as issued in exchange for the Principal Amount at Issuance of such
Securities being converted pursuant to the provisions hereof.
6. Calculations.
The Company will be responsible for making all calculations called for
under this Security. These calculations include, but are not limited to,
determinations of accrued interest, including Contingent Interest and Additional
Amounts, the Redemption Price, the Conversion Price, the Optional Repurchase
Price, the Fundamental Change Repurchase Price, the Sale Price of the Company's
Common Stock and other calculations related to a Holder's conversion rights. The
Company will make these calculations in good faith and, absent manifest error,
the
29
calculations will be final and binding on any Holder of this Security. The
Company will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and the Conversion Agent is
entitled to rely upon the accuracy of such calculations with independent
verification. The Trustee may forward the Company's calculations to any Holder
of this Security upon request.
7. Events of Default.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
8. Transfer; Exchange; Registration.
If this Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 of the Principal Amount at Issuance and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate Principal Amount at Issuance of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes (subject to provisions with respect to record
dates for the payment of interest), whether or not this Security is overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
If this Security is a Global Security, except as described below, it is
not exchangeable for a Security or Securities in certificated form. The
Securities will be delivered in certificated form if (i) the Depositary ceases
to be registered as a clearing agency under the Exchange Act or is no longer
willing or able to provide securities depository services with respect to the
Securities, (ii) the Company so determines or (iii) there shall have occurred an
Event of Default or an event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default with respect to the Securities
represented by such Global Security and such Event of Default or
30
event continues for a period of 90 days. Upon any such issuance, the Trustee is
required to register such certificated Security in the name of, and cause the
same to be delivered to, such Person or Persons (or the nominee of any thereof).
At any time when the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a Security, the
Company will promptly furnish or cause to be furnished Rule 144A Information to
such Holder or to a prospective purchaser of such Security who such Holder
informs the Company is reasonably believed to be a Qualified Institutional
Buyer, as the case may be, in order to permit compliance by such Holder with
Rule 144A under the Securities Act.
9. Amendment.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a specified
percentage of the Principal Amount at Issuance of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages of the Principal Amount at Issuance of the Securities at
the time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued 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 Security.
10. No Impairment of Obligations.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor upon the Securities (in the event such other obligor is obligated
to make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
11. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
12. Defined Terms.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
31
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Article Fourteen (Fundamental Change Notice) or Article Fifteen
(Optional Repurchase Notice), as applicable, of the Indenture, check the Box:
Article Fourteen [ ] Article Fifteen [ ].
If you wish to have a portion of this Security purchased by
the Company pursuant to Article Fourteen or Article Fifteen, as applicable, of
the Indenture, state the amount (in Principal Amount at Issuance): $___________.
If certificated, the certificate numbers of the Securities to
be delivered for repurchase are ____________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
32
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box: [ ]
To convert only part of this Security, state the Principal Amount at Issuance to
be converted (which must be $1,000 or an integral multiple of $1,000):
________________
If you want the stock certificate made out in another person's name, fill in the
form below:
_______________________________________________________________________
(insert other person's name)
_______________________________________________________________________
(insert other person's social security or tax identification number)
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(insert other person's address and zip code)
Date: ______________________
Signature: ___________________
Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be included
on the Securities and shall be substantially in the form as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
As Trustee
By: ________________________________
Authorized Signatory
33
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The initial Principal Amount at Issuance of Securities which
will be authenticated and delivered under this Indenture is $98,000,000 in
principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 303, 304, 305, 306, 307, 308, 906, Article
Eleven, Article Fourteen or Article Fifteen.
The Securities shall be known and designated as the
"Convertible Senior Notes due 2023" of the Company. The Stated Maturity of the
Securities shall be June 15, 2023. On June 15, 2023, the Company shall pay to
the Holder of the Securities the Accreted Principal Amount of the Securities
held by such Holder plus accrued and unpaid interest (including Contingent
Interest and Additional Amounts), if any. The Securities shall (i) bear from
June 15, 2003, or from the most recent Interest Payment Date to which interest
has been paid or provided for, to, but not including June 15, 2010, cash
interest at an annual rate of 4.625% of the Principal Amount at Issuance and
(ii) from and after June 15, 2010 no cash interest shall be paid. Cash interest
on the Securities is payable semi-annually in arrears on June 15 and December 15
of each year, with the first Interest Payment Date being December 15, 2003, and
will be computed on the basis of a 360-day year comprised of twelve 30-day
months. Each payment of cash interest on this Security will include interest
accrued through the day before the applicable Interest Payment Date (or Optional
Repurchase Date, Fundamental Change Repurchase Date, Redemption Date or, in
certain circumstances, Conversion Date, as the case may be).
Accretion on the Principal Amount at Issuance of the
Securities will begin on June 15, 2010. The calculation of the Principal
Accretion will be on a semi-annual bond equivalent basis using a 360-day year
comprised of twelve 30-day months and the Accreted Principal Amount of a
Security will accrete in an amount so that when combined with the cash interest
payable on the Securities, the yield to Maturity of the Securities will be
4.625%, as specified in the definition of "Principal Accretion" herein.
Any Contingent Interest payable hereunder, and any Additional
Amounts payable pursuant to the Registration Rights Agreement, will be deemed to
be interest for purposes of this Indenture.
The Accreted Principal Amount and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose; provided, however, that at the option of the Company interest may be
paid (i) by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register or (ii) by wire transfer in
immediately available funds to an account specified (not later than one Business
Day prior to the applicable Interest Payment Date) by the Holder thereof. If any
of the Securities are held by the Depositary, payments of interest may be made
by wire transfer to the Depositary. The Trustee is hereby initially designated
as the Paying Agent under this Indenture.
34
The Securities shall be convertible into Common Stock of the
Company subject to the terms of and to the extent described in Article Four.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be repurchased, at the option of the
Holder, upon a Fundamental Change as provided in Article Fourteen of this
Indenture or upon the Optional Repurchase Date as provided in Article Fifteen of
this Indenture.
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 of the Principal Amount at
Issuance and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
one of its Chairman of the Board, its President or one of its Vice Presidents
attested by its Secretary or one of its Assistant Secretaries. The signature of
any officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices on the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual or facsimile signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
In case the Company, pursuant to Article Eight, shall be
consolidated, merged with or into any other Person or shall sell, assign,
convey, transfer or lease substantially all of its properties and assets to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company shall have been merged, or the Person
which shall have received a sale, assignment, conveyance, transfer or lease as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article Nine, any of
35
the Securities authenticated or delivered prior to such consolidation, merger,
sale, assignment, conveyance, transfer or lease may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such
purpose pursuant to Section 1002, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
Section 305. Global Securities.
(a) Each Global Security initially shall (i) be
registered in the name of the Depositary for such Global Security or the nominee
of such Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the Trustee as custodian for such Depositary and (iii) bear a legend as set
forth in Section 202(a); provided, however, the Securities are eligible to be in
the form of a Global Security.
36
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Security.
(b) Transfers of the Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307. Under the circumstances
described in clause (a) above, and in this clause (b) below, beneficial owners
shall obtain physical securities in the form set forth in Sections 202, 203 and
204 ("Physical Securities") in exchange for their beneficial interests in a
Global Security in accordance with the Depositary's and the Securities
Registrar's procedures. In connection with the execution, authentication and
delivery of such Physical Securities, the Security Registrar shall reflect on
its books and records a decrease in the principal amount of the Global Security
equal to the principal amount of such Physical Securities and the Company shall
execute and the Trustee shall authenticate and deliver one or more Physical
Securities having an equal aggregate principal amount. The Securities will be
delivered in certificated form if (i) the Depositary ceases to be registered as
a clearing agency under the Exchange Act or is not willing or no longer willing
or able to provide securities depository services with respect to the Securities
and a successor depositary is not appointed by the Company within 90 days, (ii)
the Company, in its sole discretion, so determines or (iii) there shall have
occurred an Event of Default or an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default with respect to the
Securities represented by such Global Security and such Event of Default or
event continues for a period of 90 days.
(c) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (b) of this
Section to beneficial owners who are required to hold Physical Securities, the
Security Registrar shall reflect on its books and records the date and a
decrease in the principal amount of a Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to subsection (b) of this Section, a
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in a Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.
37
(e) Any Physical Security delivered in exchange for an
interest in Global Securities pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided in Section 307, bear the
Restricted Securities Legend.
(f) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(g) The Depositary or its nominee, as registered owner of
a Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Depositary's customary
procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
Section 306. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may designate, a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as the
Security Registrar may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee or an agent thereof or
of the Company shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate principal
amount.
Furthermore, any Holder of a Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interest
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Securities shall be required to be
reflected in a book entry.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities of the same series which the Holder making the exchange is entitled
to receive.
38
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Securities, but the
Company may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303, 304, 305, 306, 307,
308, 906 or Article Eleven, Article Fourteen or Article Fifteen not involving
any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business (i) 15 days before the date of selection of Securities for redemption
under Section 1104 (which date of selection is the date on which the Company
issued a notice of redemption) and ending at the close of business on the day of
such selection or (ii) 15 days before an Interest Payment Date and ending on the
close of business on the Interest Payment Date, (b) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of Securities being redeemed in part or (c) to exchange
or register a transfer of any Securities surrendered for conversion or, if a
portion of any Security is surrendered for conversion, the portion thereof
surrendered for conversion.
Every Restricted Security shall be subject to the restrictions
on transfer provided in the legend required to be set forth on the face of each
Restricted Security pursuant to Section 202(a), and the restrictions set forth
in this Section 306, and the Holder of each Restricted Security, by such
Holder's acceptance thereof (or interest therein), agrees to be bound by such
restrictions on transfer.
The restrictions imposed by this Section 306 upon the
transferability of any particular Restricted Security shall cease and terminate
on (a) the later of two years from their date of issuance or two years after the
last date on which the Company or any Affiliate of the Company was the owner of
such Restricted Security (or any predecessor of such Restricted Security) or (b)
(if earlier) if and when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or under the Securities Act (or any successor provision),
unless the Holder thereof is an affiliate of the Company within the meaning of
Rule 144 (or such successor provisions). Any Restricted Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon surrender of such Restricted Security for
exchange to the Security Registrar in accordance with the provision of this
Section 306 (accompanied, in the event that such restrictions on transfer have
terminated pursuant to Rule 144 (or any successor
39
provision), by an Opinion of Counsel satisfactory to the Company and the
Trustee, to the effect that the transfer of such Restricted Security has been
made in compliance with Rule 144 (or any such successor provision)), be
exchanged for a new Security, of like tenor and aggregate principal amount,
which shall not bear the Restricted Securities Legend. The Company shall inform
the Trustee of the effective date of any Registration Statement registering the
Securities under the Securities Act no later than two Business Days after such
effective date.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section,
Section 304, 308, 906 or 1108 or otherwise, shall also be a Global Security and
bear the legend specified in Section 202(a).
Section 307. Special Transfer Provisions.
Unless and until a Security is sold under an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply (except to the extent inconsistent with the
Applicable Procedures):
(a) Restricted Securities Legend. Rule 144A Global
Securities and their successor securities shall bear a Restricted Securities
Legend, subject to the following:
(i) subject to the following clauses of this
Section 307(a), a Security or any portion thereof which is
exchanged, upon transfer or otherwise, for a Global Security
or any portion thereof shall bear the Restricted Securities
Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this
Section 307(a), a new Security which is not a Global Security
and is issued in exchange for another Security (including a
Global Security) or any portion thereof, upon transfer or
otherwise, shall bear the Restricted Securities Legend borne
by such other Security;
(iii) All Securities included on or sold or
otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their
respective successor securities, shall not bear a Restricted
Securities Legend (and in such event the Company shall
exchange a Global Security which bears the Restricted
Securities Legend, in whole or in part, for one or more Global
Securities which do not have such rights;
(iv) at any time after the Securities may be
freely transferred without registration under the Securities
Act or without being subject to transfer restrictions pursuant
to the Securities Act, a new Security which does not bear a
Restricted Securities Legend may be issued in exchange for or
in lieu of a Security (other than a Global Security) or any
portion thereof which bears such a legend if the Trustee has
received an Unrestricted Securities Certificate substantially
in the form of Exhibit B hereto, satisfactory to the Trustee
and duly executed by the
40
Holder of such legended Security or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a
new Security in exchange for or in lieu of such other Security
as provided in this Article Three;
(v) a new Security which does not bear a
Restricted Securities Legend may be issued in exchange for or
in lieu of a Security (other than a Global Security) or any
portion thereof which bears such a legend if, in the Company's
judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the
direction of the Company, shall authenticate and deliver such
a new Security as provided in this Article Three.
(b) General. By its acceptance of any Security bearing
the Restricted Securities Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture and in
the Restricted Securities Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Security Registrar.
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser or protected purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of
41
the Company, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security 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 Security is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities are registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date (not less than 30 days after such
notice) of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company in writing of such Special Record Date. In the
name and at the expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities are registered on
such Special Record Date and shall no longer be payable pursuant to the
following subsection (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after
42
written notice given by the Company to the Trustee of the proposed payment
pursuant to this Subsection, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 310. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 309) interest on such Security, for the
purpose of conversion and for all other purposes whatsoever, including payment
of any Redemption Price, Optional Redemption Price or Fundamental Change
Repurchase Price, whether or not such Security is overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. No holder of any beneficial interest in any
Global Security held on its behalf by a Depositary shall have any rights under
this Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security.
Section 311. Cancellation.
All Securities surrendered for payment, purchase, redemption,
conversion, registration of transfer or exchange shall be delivered to the
Trustee (even if initially surrendered to a Person other than the Trustee) and,
if not already cancelled, shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section or for any Securities
that any Holder has converted pursuant to this Indenture, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be destroyed and certification of their destruction delivered to the Company
unless by a Company Order the Company shall direct that the cancelled Securities
be returned to it. The Trustee shall provide the Company a list of all
Securities that have been cancelled from time to time as requested by the
Company.
43
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
CONVERSION
Section 401. Conversion Privilege.
(a) Subject to and upon compliance with the provisions of
this Article, at the option of the Holder, any Security or any portion thereof
which is an integral multiple of $1,000 of the Principal Amount at Issuance may
be converted into duly authorized, fully paid and nonassessable shares of Common
Stock if any of the conditions to conversion set forth in this Section 401 are
satisfied. The number of shares of Common Stock issuable upon conversion of a
Security (the "Conversion Rate") shall be determined at a Conversion Rate of
fifty (50) shares of Common Stock per $1,000 of the Principal Amount at Issuance
of the Securities (and with no effect given to any accretion on the principal
amount after June 15, 2010), other than pursuant to Section 401(a)(ii), subject
to the adjustments in Section 406.
(i) Conversion Upon Satisfaction of Common Stock
Price Conditions
Any Holder may surrender all or any portion of his or her
Securities for conversion into Common Stock (at the then applicable Conversion
Rate) during any Calendar Quarter if, as of the last day of the preceding
Calendar Quarter, the Sale Price of the Common Stock for at least 20 Trading
Days in the 30 Trading Day period ending on the last day of such preceding
Calendar Quarter exceeds 120% of the Accreted Conversion Price per share of
Common Stock on the last Trading Day of such preceding Calendar Quarter (the
Sale Price of the Common Stock at or above which the Securities may be converted
being referred to herein as the "Conversion Trigger Price").
The table below shows the Conversion Trigger Price per share
of Common Stock in respect of each Calendar Quarter during the life of the
Securities based on the initial Conversion Rate, assuming that no events have
occurred that would require an adjustment to the Conversion Rate.
44
(3)
Conversion
(1) Trigger
Accreted Conversion (2) Price
Quarter Price Per Share Percentage (1) x (2)
------- --------------- ---------- ---------
On or before June 30, 2010 $20.00 120% $24.00
Quarter Ending September 30, 2010 $20.23 120% $24.28
Quarter Ending December 31, 2010 $20.46 120% $24.56
Quarter Ending March 31, 2011 $20.70 120% $24.84
Quarter Ending June 30, 2011 $20.94 120% $25.12
Quarter Ending September 30, 2011 $21.18 120% $25.41
Quarter Ending December 31, 2011 $21.42 120% $25.70
Quarter Ending March 31, 2012 $21.67 120% $26.00
Quarter Ending June 30, 2012 $21.92 120% $26.30
Quarter Ending September 30, 2012 $22.17 120% $26.60
Quarter Ending December 31, 2012 $22.42 120% $26.91
Quarter Ending March 31, 2013 $22.68 120% $27.22
Quarter Ending June 30, 2013 $22.94 120% $27.53
Quarter Ending September 30, 2013 $23.20 120% $27.85
Quarter Ending December 31, 2013 $23.47 120% $28.17
Quarter Ending March 31, 2014 $23.74 120% $28.49
Quarter Ending June 30, 2014 $24.01 120% $28.82
Quarter Ending September 30, 2014 $24.29 120% $29.15
Quarter Ending December 31, 2014 $24.57 120% $29.48
Quarter Ending March 31, 2015 $24.85 120% $29.82
Quarter Ending June 30, 2015 $25.14 120% $30.16
Quarter Ending September 30, 2015 $25.43 120% $30.51
Quarter Ending December 31, 2015 $25.72 120% $30.86
Quarter Ending March 31, 2016 $26.01 120% $31.22
Quarter Ending June 30, 2016 $26.31 120% $31.58
Quarter Ending September 30, 2016 $26.62 120% $31.94
Quarter Ending December 31, 2016 $26.92 120% $32.31
Quarter Ending March 31, 2017 $27.23 120% $32.68
Quarter Ending June 30, 2017 $27.54 120% $33.05
Quarter Ending September 30, 2017 $27.86 120% $33.43
Quarter Ending December 31, 2017 $28.18 120% $33.82
Quarter Ending March 31, 2018 $28.51 120% $34.21
Quarter Ending June 30, 2018 $28.83 120% $34.60
Quarter Ending September 30, 2018 $29.16 120% $35.00
Quarter Ending December 31, 2018 $29.50 120% $35.40
Quarter Ending March 31, 2019 $29.84 120% $35.81
Quarter Ending June 30, 2019 $30.18 120% $36.22
Quarter Ending September 30, 2019 $30.53 120% $36.63
Quarter Ending December 31, 2019 $30.88 120% $37.06
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(3)
Conversion
(1) Trigger
Accreted Conversion Price (2) Price
Quarter Per Share Percentage (1) x (2)
------- --------- ---------- ---------
Quarter Ending March 31, 2020 $31.23 120% $37.48
Quarter Ending June 30, 2020 $31.59 120% $37.91
Quarter Ending September 30, 2020 $31.96 120% $38.35
Quarter Ending December 31, 2020 $32.32 120% $38.79
Quarter Ending March 31, 2021 $32.70 120% $39.24
Quarter Ending June 30, 2021 $33.07 120% $39.69
Quarter Ending September 30, 2021 $33.45 120% $40.14
Quarter Ending December 31, 2021 $33.84 120% $40.60
Quarter Ending March 31, 2022 $34.23 120% $41.07
Quarter Ending June 30, 2022 $34.62 120% $41.54
Quarter Ending September 30, 2022 $35.02 120% $42.02
Quarter Ending December 31, 2022 $35.42 120% $42.50
Quarter Ending March 31, 2023 $35.83 120% $42.99
Period Ending June 15, 2023 $36.24 120% $43.49
(ii) Conversion Upon Satisfaction of Security
Price Conditions
Any Holder may surrender all or any portion of his or her
Securities for conversion into Common Stock during the five consecutive Trading
Day period following any 10 consecutive Trading Day period in which (A) the
Security Price of the Securities for each Trading Day during such 10 day period
was less than 105% of the Conversion Value for the Securities and (B) the
Conversion Value for each Trading Day during such 10 day period was less than
90% of the Accreted Principal Amount of the Securities; provided, however, that
to the extent a Holder converts Securities pursuant to this provision, such
Holder will receive a number of shares of Common Stock equal to the lesser of
(A) the number of shares of Common Stock that the Holder would receive using a
Conversion Rate equal to the Conversion Rate on the last Trading Day preceding
the Conversion Date or (B) the number of shares of Common Stock equal to the
Accreted Principal Amount of the Securities being converted divided by the Sale
Price of the Common Stock on the last Trading Day preceding the Conversion Date.
(iii) Conversion Upon Notice of Redemption
Any Holder may surrender all or any portion of his or her
Securities for conversion into Common Stock at the then-applicable Conversion
Rate if the Company has called the Securities for redemption, at any time prior
to the close of business on the day that is two Business Days prior to the
Redemption Date, even if the Securities are not otherwise convertible at that
time.
46
(iv) Conversion Upon a Credit Rating Event
Any Holder may surrender all or any portion of his or her
Securities for conversion into Common Stock at any time at the then-applicable
Conversion Rate, if the credit ratings assigned to the Securities by either
▇▇▇▇▇'▇ or S&P are downgraded by two or more notches or the Securities cease to
be rated; provided, however, that the Company has no obligation to have the
Securities rated. For purposes of clarity, a credit rating will be deemed to
have moved by two notches if, for example, it moves two notches within a
category (e.g., BB+ to BB-).
(v) Conversion Upon Specified Corporate
Transactions
Any Holder may surrender all or any portion of his or her
Securities for conversion into Common Stock at any time at the then-applicable
Conversion Rate if (A) the Company distributes to all holders of its shares of
Common Stock rights or warrants entitling them (for a period expiring within 60
days of the record date for such distribution) to subscribe for or purchase
shares of Common Stock, at a price per share less than the Sale Price of the
Common Stock at the time of the announcement of such distribution, (B) the
Company distributes to all holders of its shares of Common Stock, cash or other
assets, debt securities or rights or warrants to purchase its securities, which
distribution (together with all other distributions covered by this clause (B)
not triggering a conversion right during the preceding 12 months) has a per
share value exceeding 5% of the Sale Price of the Common Stock on the day
preceding the declaration date for the distribution, or (C) a Fundamental Change
occurs. In each case, the Security may be surrendered for conversion into shares
of Common Stock at any time after the Company provides notice of such event (1)
until the earlier of the close of business on the Business Day immediately prior
to the Ex-Dividend Time or the date of the Company's announcement that the
distribution will not take place, in the case of a distribution, or (2) until 40
days thereafter, in the case of a Fundamental Change. The Company will provide
notice to the Holders at least 20 days prior to the Ex-Dividend Time for a
distribution or within 20 business days of the occurrence of a Fundamental
Change, as the case may be, of the occurrence of any such event. In the case of
a distribution, Holders may not convert Securities if they will otherwise
participate in the distribution without conversion as a result of holding the
Securities, or
In addition, any Holder may surrender all or any portion of
his or her Securities for conversion into Common Stock at any time at the
then-applicable Conversion Rate if the Company consolidates with or merges into
another corporation, or is a party to a binding share exchange pursuant to which
the shares of Common Stock would be converted into cash, securities or other
property as set forth in Section 411 hereof. In such event, the Security may be
surrendered for conversion at any time from and after the date which is 15 days
prior to the date announced by the Company as the anticipated effective time of
such transaction until 15 days after the actual date of such transaction. In the
event a Holder does not convert its Security during this time period, such
Holder will be entitled to receive, upon conversion, the kind and amount of
cash, securities or other property that it would have received if it had
converted its Security immediately prior to such consolidation, merger or
binding share exchange.
47
(b) The Company shall determine on a daily basis whether
the Security shall be convertible as a result of the occurrence of an event
specified in clause (a)(i) or clause (a)(ii) above and, if the Security shall be
so convertible, the Company shall promptly deliver to the Trustee written notice
thereof. Whenever the Security shall become convertible pursuant to Section 401,
the Company or, at the Company's written request, the Trustee in the name and at
the expense of the Company, shall notify the Holders of the event triggering
such convertibility in the manner provided in Section 402, and the Company shall
also publicly announce such information and publish it on the Company's web site
(or otherwise broadly disseminate the information in any manner deemed
reasonable by the Company). Any notice so given shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice.
Notwithstanding the foregoing, if such Security is called for
redemption pursuant to Article Eleven or is submitted or presented for
repurchase pursuant to Articles Fourteen or Fifteen, such conversion right shall
terminate at the close of business on the second Business Day immediately
preceding the Redemption Date, Optional Repurchase Date or Fundamental Change
Repurchase Date, as the case may be, for such Security or such earlier date as
the Holder presents such Security for redemption or for purchase (unless the
Company shall default in making the Redemption Price, Optional Repurchase Price
or Fundamental Change Repurchase Price payment when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Security is redeemed or purchased, as the case may
be). If such Security is submitted or presented for purchase pursuant to Article
Fourteen or Article Fifteen and is then subsequently withdrawn, such conversion
right shall no longer be deemed terminated, and the Holder of such Security may
convert such Security pursuant to this Section 401.
A Security in respect of which a Holder has delivered an
Fundamental Change Repurchase Notice pursuant to Section 1401 or an Optional
Repurchase Notice pursuant to Section 1501(c) exercising the option of such
Holder to require the Company to repurchase such Security may be converted only
if such Fundamental Change Repurchase Notice or Optional Repurchase Notice, as
the case may be, is withdrawn by a written notice of withdrawal delivered to a
Paying Agent prior to the close of business on the second Business Day
immediately preceding the Fundamental Change Repurchase Date or Optional
Repurchase Date, as the case may be, in accordance with Sections 1402 or 1502,
respectively.
A Holder of Securities is not entitled to any rights of a
holder of Common Stock until such Holder has converted its Securities to Common
Stock, and only to the extent such Securities are deemed to have been converted
into Common Stock pursuant to this Article Four.
Provisions of this Indenture that apply to conversion of all
of a Security also apply to conversion of a portion of a Security.
Section 402. Conversion Procedures.
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice on the back of the Security and deliver such notice
to a Conversion Agent, (b) surrender the Security to a Conversion Agent, (c)
furnish appropriate endorsements and transfer
48
documents if required by a Conversion Agent, and (d) pay any transfer or similar
tax, if required. The date on which the Holder satisfies all of those
requirements is the "Conversion Date." The Conversion Agent may assume that any
Holder that delivers such conversion notice is entitled to convert the Security
without independent investigation. As soon as practicable after the Conversion
Date, but in any event no later than the fifth Business Day following the
Conversion Date, the Company shall deliver to the Holder through a Conversion
Agent a certificate for the number of whole shares of Common Stock issuable upon
the conversion and cash in lieu of any fractional shares pursuant to Section
403. The Company shall set forth the full number of shares and the amounts of
the required cash in lieu of fractional shares in an Officers' Certificate
delivered to the Conversion Agent. Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may be
delivered and such Securities may be surrendered for conversion in accordance
with the Applicable Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is
registered shall be deemed to be a stockholder of record on the Conversion Date;
provided, however, that no surrender of a Security on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the person or persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender shall be effective to constitute the person or
persons entitled to receive such shares of Common Stock as the record holder or
holders thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; provided, further, that such
conversion shall be at the Conversion Rate in effect on the Conversion Date as
if the stock transfer books of the Company had not been closed on such date.
Upon conversion of a Security, such person shall no longer be deemed a Holder of
such Security.
Securities surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date for an
interest payment to the opening of business on the next succeeding Interest
Payment Date (excluding Securities or portions thereof called for redemption on
a Redemption Date during the period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the first Business
Day after the next succeeding Interest Payment Date, or if such Interest Payment
Date is not a Business Day, the second such Business Day) shall also be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the aggregate Principal
Amount at Issuance of such Security then being converted, and such interest
shall be payable to such registered Holder notwithstanding the conversion of
such Security, subject to the provisions of this Indenture relating to the
payment of Defaulted Interest by the Company. Accordingly, a Holder shall be
entitled to receive accrued and unpaid interest, including any Contingent
Interest, in respect of a Security if the Company calls such Security for
redemption and such Holder converts its Security prior to the Redemption Date.
Except as otherwise provided in this Section 402, no payment or adjustment will
be made for accrued interest on a converted Security. If the Company defaults in
the payment of interest payable on such Interest Payment Date, the Company shall
promptly repay such funds to such Holder.
If Contingent Interest is payable to Holders of Securities
during any particular Contingent Interest Period, and such Securities are
converted after the applicable Regular Record
49
Date therefor and prior to the next succeeding Interest Payment Date, holders of
such Securities at the close of business on the Regular Record Date will receive
the Contingent Interest payable on such Securities on the corresponding Interest
Payment Date notwithstanding the conversion. Such Securities, upon surrender for
conversion, must be accompanied by funds equal to the amount of Contingent
Interest payable on the Principal Amount at Issuance of Securities so converted,
unless such Securities have been called for redemption, in which case no such
payment shall be required.
Nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a record date
to receive the interest payable on such Security on the related Interest Payment
Date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of shares of
Common Stock issuable upon the conversion shall be based on the aggregate
Principal Amount at Issuance of Securities converted.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security equal in principal amount to the unconverted portion of
the Security surrendered.
If a Holder converts more than one Security at the same time,
the number of shares of Common Stock issuable upon the conversion shall be based
on the total principal amount of the Securities converted.
If the last day on which Securities may be converted is not a
Business Day in a place where a Conversion Agent is located, the Securities may
be surrendered to that Conversion Agent on the next succeeding day that is a
Business Day.
Except as otherwise stated in this Indenture, the Company will
not make any payment in cash or Common Stock or any other adjustment for accrued
and unpaid interest (including Contingent Interest and Additional Amounts) or
accrued Principal Accretion or Tax Original Issue Discount on the Securities or
dividends in connection with the issuance of any Common Stock issued upon
conversion of the Securities. On conversion of a Security, except as otherwise
stated herein, a Holder will not receive any cash payment or additional shares
in respect thereof representing accrued Principal Accretion, accrued and unpaid
cash interest (including Contingent Interest and Additional Amounts) and Tax
Original Issue Discount. Delivery by the Company to the Holder of the full
number of shares of Common Stock into which the Security is convertible,
together with any cash payment for such Holder's fractional shares, will be
deemed to satisfy the Company's obligation to pay the Principal Amount at
Issuance of the Security and to satisfy its obligation to pay accrued Principal
Accretion or any accrued and unpaid interest (including Contingent Interest and
Additional Amounts) and Tax Original Issue Discount attributable to the period
from the Issue Date through the Conversion Date. As a result, accrued Principal
Accretion, any accrued and unpaid cash interest (including Contingent Interest
and Additional Amounts) and Tax Original Issue Discount is deemed paid in full
rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing,
accrued cash interest (including Contingent Interest and Additional Amounts), if
any, will be payable upon any
50
conversion of the Securities at the option of the Holder made concurrently with
or after acceleration of the Securities following an Event of Default under the
Securities.
Section 403. Fractional Shares.
The Company will not issue fractional shares of Common Stock
upon conversion of Securities. In lieu thereof, the Company will pay an amount
in cash based upon the Sale Price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
Section 404. Taxes on Conversion.
If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock upon such conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent shall refuse to deliver the
certificate representing the Common Stock being issued in a name other than the
Holder's name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any tax withholding required by
law or regulation.
Section 405. Company to Provide Stock.
The Company shall, prior to issuance of any Securities
hereunder, and from time to time as may be necessary, reserve, out of its
authorized but unissued Common Stock, a sufficient number of shares of Common
Stock to permit the conversion of all outstanding Securities into shares of
Common Stock.
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares, shall be duly authorized, validly
issued, fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or on
the Nasdaq National Market or other over-the-counter market or such other market
on which the Common Stock is then listed or quoted; provided, however, that if
rules of such automated quotation system or exchange permit the Company to defer
the listing of such Common Stock until the first conversion of the Securities
into Common Stock in accordance with the provisions of this Indenture, the
Company covenants to list such Common Stock issuable upon conversion of the
Securities in accordance with the requirements of such automated quotation
system or exchange at such time.
Section 406. Adjustment of Conversion Rate.
The Conversion Rate as stated in the Securities shall be
adjusted from time to time by the Company as follows:
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(a) In case the Company shall (i) pay a dividend on its
Common Stock in shares of Common Stock, (ii) make a distribution on its Common
Stock in shares of Common Stock, (iii) subdivide its outstanding Common Stock
into a greater number of shares, or (iv) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Rate in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights, warrants or
options to all or substantially all holders of its Common Stock entitling them
(for a period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) 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 per share of Common Stock (as determined in accordance with
subsection (g) of this Section 406) on the record date for the determination of
stockholders entitled to receive such rights, warrants or options, the
Conversion Rate in effect immediately prior thereto shall be adjusted by
multiplying the Conversion Rate in effect immediately prior to such record date
by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding on such record date, plus the number of shares of Common Stock
so offered for subscription or purchase (or into which the convertible
securities so offered are convertible), and the denominator of which shall be
the number of shares of Common Stock outstanding at the close of business on
such record date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered for
subscription or purchase (or the aggregate conversion price of the convertible
securities so offered, which shall be determined by multiplying the number of
shares of Common Stock issuable upon conversion of such convertible securities
by the conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the current market price per share (as
defined in Section 406(g) herein). Such adjustment shall be made successively
whenever any such rights, warrants or options are issued, and shall become
effective immediately after such record date. If at the end of the period during
which such rights, warrants or options are exercisable not all rights, warrants
or options shall have been exercised, the adjusted Conversion Rate shall be
immediately readjusted to what it would have been based upon the number of
additional shares of Common Stock actually issued (or the number of shares of
Common Stock issuable upon conversion of convertible securities actually
issued). No adjustment shall be made hereunder if as a result the Conversion
Rate would decrease.
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock any Equity Interests of the
Company (other than Common Stock), evidences of indebtedness or other non-cash
assets (including securities of any person other than the Company but excluding
dividends or distributions referred to in subsection (a)(i) or (ii) of this
Section 406), or shall distribute to all or substantially all holders of its
Common Stock rights, warrants or options to subscribe for or purchase any of its
securities (excluding those rights and warrants referred to in subsection (b) of
this Section 406), then in each such case the Conversion
52
Rate shall be adjusted by multiplying the Conversion Rate in effect immediately
prior to the close of business on the record date for the determination of
shareholders entitled to such distribution by a fraction of which the numerator
shall be the current market price per share of Common Stock (determined as
provided in subsection (g) of this Section 406) on such record date and the
denominator shall be such current market price less the fair market value (as
determined by the Board of Directors whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the evidences of
indebtedness, shares of capital stock, and other assets to be distributed or of
such subscription rights or warrants applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on
the record date). Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 406(c) (and no adjustment to the
Conversion Rate under this Section 406(c) will be required) until the occurrence
of the earliest Trigger Event. If such right or warrant is subject to subsequent
events, upon the occurrence of which such right or warrant shall become
exercisable to purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount of the
foregoing or to purchase any of the foregoing at a different purchase price,
then the occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and a
termination or expiration of the existing right or warrant without exercise by
the holder thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto, that resulted in
an adjustment to the Conversion Rate under this Section 406(c), (1) in the case
of any such rights or warrants which shall all have been redeemed or repurchased
without exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of
such rights or warrants all of which shall have expired or been terminated
without exercise, the Conversion Rate shall be readjusted as if such rights and
warrants had never been issued.
(d) In case the Company shall, by dividend or otherwise,
at any time distribute (a "Triggering Distribution" and such amount, together
with the sum of (A) and (B) below, the "Combined Amount")) to all or
substantially all holders of its Common Stock, cash in an aggregate amount that,
together with the aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the
53
Trustee) of any other consideration payable in respect of any tender offer by
the Company or a Subsidiary of the Company for Common Stock consummated within
the 12 months preceding the date of payment of the Triggering Distribution and
in respect of which no Conversion Rate adjustment pursuant to this Section 406
has been made and (B) all other cash distributions to all or substantially all
holders of its Common Stock made within the 12 months preceding the date of
payment of the Triggering Distribution and in respect of which no Conversion
Rate adjustment pursuant to this Section 406 has been made exceeds an amount
equal to 5% of the product of the current market price per share of Common Stock
(as determined in accordance with subsection (g) of this Section 406) on the
Business Day (the "Determination Date") immediately preceding the day on which
such Triggering Distribution is declared by the Company multiplied by the number
of shares of Common Stock outstanding on the Determination Date (excluding
shares held in the treasury of the Company), the Conversion Rate shall be
adjusted by multiplying the Conversion Rate in effect immediately prior to the
effectiveness of the Conversion Rate adjustment contemplated by this subsection
(d) by a fraction (y) the numerator of which shall be such current market price
per share of Common Stock (as determined in accordance with subsection (g) of
this Section 406) on the Determination Date and (z) the denominator of which
shall be (I) such current market price per share of Common Stock on the
Determination Date less (II) the number obtained by dividing the Combined Amount
by such number of shares of Common Stock outstanding on the Determination Date.
Such adjustment shall become effective immediately prior to the opening of
business following the date on which the Triggering Distribution is paid;
provided that, in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the market price per share
of Common Stock, an adequate adjustment provision shall be made so that each
holder of Securities shall have the right to receive upon conversion the amount
of cash such holder would have received had such holder converted each Security
immediately prior to such distribution.
(e) In case any tender offer made by the Company or any
of its Subsidiaries for Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) (other than a transaction in connection
with the creation of a Wholly-Owned Subsidiary of the Company which would hold
all or substantially all of the Company's broadcast operations and would assume
all or substantially all of the Company's debt other than the Securities) shall
involve the payment of aggregate consideration in an amount (determined as the
sum of the aggregate amount of cash consideration and the aggregate fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers'
Certificate delivered to the Trustee thereof) of any other consideration) that,
together with the aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee) of any other consideration payable in respect of any
other tender offers by the Company or any Subsidiary of the Company for Common
Stock consummated within the 12 months preceding the date of the Expiration Date
(as defined below) and in respect of which no Conversion Rate adjustment
pursuant to this Section 406 has been made and (B) all cash distributions to all
or substantially all holders of its Common Stock made within the 12 months
preceding the Expiration Date and in respect of which no Conversion Rate
adjustment pursuant to this Section 406 has been made, exceeds an
54
amount equal to 5% of the product of the current market price per share of
Common Stock (as determined in accordance with subsection (g) of this Section
406) as of the last date (the "Expiration Date") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time at which
such tenders could have been made on the Expiration Date is hereinafter
sometimes called the "Expiration Time") multiplied by the number of shares of
Common Stock outstanding (including tendered shares but excluding any shares
held in the treasury of the Company) at the Expiration Time, then, immediately
prior to the opening of business on the day after the Expiration Date, the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
close of business on the Expiration Date by a fraction of which the numerator
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to holders of Common Stock 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 and any shares held in the treasury of the Company)
at the Expiration Time and the current market price per share of Common Stock
(as determined in accordance with subsection (g) of this Section 406) as of the
Expiration Time, and the denominator of which shall be the product of the number
of shares of Common Stock outstanding (including any tendered shares but
excluding any shares held in the treasury of the Company) at the Expiration Time
multiplied by the current market price per share of the Common Stock (as
determined in accordance with subsection (g) of this Section 406) as of the
Expiration Time, such adjustment to become effective immediately prior to the
opening of business on the day following the Expiration Date. 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 or
all such purchases or any or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would have been in
effect based upon the number of shares actually purchased. If the application of
this Section 406(e) to any tender offer would result in a decrease in the
Conversion Rate, no adjustment shall be made for such tender offer under this
Section 406(e).
(f) For purposes of Section 406(d) or 406(e), the term
"tender offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.
(g) For the purpose of any computation under subsections
(b), (c) and (g) of this Section 406, the current market price per share of
Common Stock (the "current market price per share") on any date shall be deemed
to be the average of the daily Sale Price for the 30 consecutive Trading Days
commencing 45 Trading Days before (i) the Determination Date or the Expiration
Date, as the case may be, with respect to distributions or tender offers under
subsection (c) of this Section 406 or (ii) the record date with respect to
distributions, issuances or other events requiring such computation under
subsection (b) or (c) of this Section 406. For
55
purposes of this Section 406, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company.
(h) In any case in which this Section 406 shall require
that an adjustment be made following a record date or a Determination Date or
Expiration Date, as the case may be, established for purposes of this Section
406, the Company may elect to defer (but only until five Business Days following
the filing by the Company with the Trustee of the certificate described in
Section 409) issuing to the Holder of any Security converted after such record
date or Determination Date or Expiration Date the shares of Common Stock and
other Equity Interests of the Company issuable upon such conversion over and
above the shares of Common Stock and other Equity Interests of the Company
issuable upon such conversion only on the basis of the Conversion Rate prior to
adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence prepared by the Company of the right to receive such
shares. If any distribution in respect of which an adjustment to the Conversion
Rate is required to be made as of the record date or Determination Date or
Expiration Date therefor is not thereafter made or paid by the Company for any
reason, the Conversion Rate shall be readjusted to the Conversion Rate which
would then be in effect if such record date had not been fixed or such effective
date or Determination Date or Expiration Date had not occurred.
(i) Whenever adjustments to the Conversion Rate are
called for pursuant to Article Four, such adjustments shall be made to the
Conversion Rate as may be necessary or appropriate to effectuate the intent of
this Article Four and to avoid unjust or inequitable results as determined in
good faith by the Board of Directors.
Section 407. No Adjustment.
No adjustment in the Conversion Rate shall be required unless
the adjustment would require an increase or decrease of at least 1% in the
Conversion Rate as last adjusted; provided, however, that any adjustments which
by reason of this Section 407 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article Four shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. After an adjustment is made to the
Conversion Rate, any subsequent event requiring adjustment shall cause an
adjustment to the Conversion Rate as adjusted.
No adjustment need be made for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a
change in the par value or a change to no par value of the Common Stock.
To the extent that the Securities become convertible into the
right to receive cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
56
Section 408. Adjustment for Tax Purposes.
Upon 15 days prior notice to the Trustee and the Holders, the
Company shall be entitled to make increases in the Conversion Rate, in addition
to those required by Section 406, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or securities or distributions of
securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders or other similar event shall not be taxable or shall
be taxable to a lesser degree to such stockholders.
Section 409. Notice of Adjustment.
Whenever the Conversion Rate or conversion privilege is
adjusted, the Company shall promptly mail to Holders a notice of the adjustment
and file with the Trustee and the Conversion Agent an Officers' Certificate
briefly stating the facts requiring the adjustment and the manner of computing
it. Unless and until the Trustee shall receive an Officers' Certificate setting
forth an adjustment of the Conversion Rate, the Trustee may assume without
inquiry that the Conversion Rate has not been adjusted and that the last
Conversion Rate of which it has knowledge remains in effect.
Section 410. Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would
require an adjustment in the Conversion Rate;
(2) the Company consolidates or merges with, or
transfers all or substantially all of its property and assets to,
another corporation and shareholders of the Company must approve the
transaction; or
(3) there is a dissolution or liquidation of the
Company,
then in each such case the Company shall mail to Holders and file with the
Trustee a notice stating the proposed record or effective date, as the case may
be. The Company shall mail the notice at least ten days before such date.
Failure to mail such notice or any defect therein shall not affect the validity
of any transaction referred to in clause (1), (2) or (3) of this Section 410.
Section 411. Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege.
If any of the following shall occur, namely: (a) any
reclassification or change of shares of Common Stock issuable upon conversion of
the Securities (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, or any other change for which an adjustment is provided in Section
406); (b) any consolidation, merger, binding share exchange or combination to
which the Company is a party as a result of which the holders of Common Stock
shall be entitled to receive
57
stock, securities or other properties or assets with respect to or in exchange
for such Common Stock, other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than 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) in,
outstanding shares of Common Stock; or (c) any sale or conveyance as an entirety
or substantially as an entirety of the property and assets of the Company,
directly or indirectly, to any person, in each case in which holders of the
Company's Common Stock would be entitled to receive stock, other securities,
other property, assets or cash for their Common Stock, then the Company, or such
successor, purchasing or transferee corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, combination,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, combination, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
deliverable upon conversion of such Security immediately prior to such
reclassification, change, combination, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Rate which shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Rate provided for in this Article Four. If, in the
case of any such consolidation, merger, combination, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock include shares of stock or other securities and
property of a person other than the successor, purchasing or transferee
corporation, as the case may be, in such consolidation, merger, combination,
sale or conveyance, then such supplemental indenture shall also be executed by
such other person and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section 411 shall similarly apply to successive reclassifications, changes,
combinations, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 411, the Company shall promptly file with the
Trustee (x) an Officers' Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or other securities or property (including
cash) receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, change, combination, consolidation,
merger, sale or conveyance, any adjustment to be made with respect thereto and
that all conditions precedent have been complied with and (y) an Opinion of
Counsel that all conditions precedent have been complied with, and shall
promptly mail notice thereof to all Holders.
The provisions of this Section 411 shall not apply to
transactions in connection with the creation of a Wholly-Owned Subsidiary of the
Company which would hold all or substantially all of the Company's broadcast
operations and would become a primary obligor under all or substantially all of
the Company's Indebtedness (other than the Securities).
58
Section 412. Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment
under this Article Four should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of that fact or the
correctness of any such adjustment, and shall be protected in relying upon, an
Officers' Certificate including the Officers' Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to Section 409.
The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall
not be responsible for the Company's failure to comply with any provisions of
this Article Four.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 411, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 411.
Section 413. Voluntary Increase.
The Company from time to time may increase the Conversion Rate
by any amount for any period of time if the period is at least 20 days and if
the Board of Directors determines that such increase would be in the best
interest of the Company and the Company provides 15 days prior notice to the
Holders, the Trustee and the Conversion Agent of any increase in the Conversion
Rate.
Section 414. Rights Issued in Respect of Common Stock Issued Upon
Conversion.
Each share of Common Stock issued upon conversion of
Securities pursuant to this Article Four shall be entitled to receive the
appropriate number of common stock or preferred stock purchase rights, as the
case may be (the "Rights"), if any, that all shares of Common Stock are entitled
to receive and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by
the terms of any rights agreement adopted by the Company, as the same may be
amended from time to time (in each case, a "Rights Agreement"). Provided that
such Rights Agreement requires that each share of Common Stock issued by the
Company (including those that might be issued upon conversion of Securities) at
any time prior to the distribution of separate certificates representing the
Rights be entitled to receive such Rights, then, notwithstanding anything else
to the contrary in this Article Four, there shall not be any adjustment to the
conversion privilege or Conversion Rate or any other term or provision of the
Securities as a result of the issuance of Rights, the distribution of separate
certificates representing the Rights, the exercise or redemption of such Rights
in accordance with any Rights Agreements, or the termination or invalidation of
Rights.
59
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events which has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any
interest on any Security (including any Contingent Interest or Additional
Amounts) when it becomes due and payable, and such default shall continue for a
period of 30 days;
(b) there shall be a default in the payment of the
Accreted Principal Amount on any Security at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company under this Indenture (other
than a default in the performance or breach of a covenant or agreement which is
specifically dealt with in clause (a) or (b) or in clause (ii) or (iii) of this
clause (c)) and such default or breach shall continue for a period of 30 days
after written notice has been given, by certified mail, (1) to the Company by
the Trustee or (z) to the Company and the Trustee by the Holders of at least 25%
in aggregate Principal Amount at Issuance of the Outstanding Securities; (ii)
there shall be a default in the performance or breach of the provisions of
Article Eight; or (iii) the Company shall have failed to make or consummate an
offer to repurchase Securities upon a Fundamental Change in accordance with the
provisions of Article Fourteen;
(d) there shall have occurred a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness of the Company or any of its
Subsidiaries whether such Indebtedness now exists, or is created after the date
of this Indenture, which default (i) involves the failure to pay principal of or
any premium or interest on such Indebtedness when such Indebtedness becomes due
and payable at the stated maturity thereof, and such default shall continue
after any applicable grace period or (ii) results in the acceleration of such
Indebtedness unpaid prior to the stated maturity thereof and, in the case of (i)
or (ii), the principal amount of such Indebtedness, together with the principal
amount of any other Indebtedness so unpaid at its stated maturity or the stated
maturity of which has been so accelerated, aggregates $5,000,000 or more;
(e) there shall be a failure by the Company or any of its
Subsidiaries to pay final judgments aggregating in excess of $5,000,000, which
judgments are not paid, discharged or stayed for a period of 60 days;
60
(f) there shall have been the entry by a court of
competent jurisdiction of (i) a decree or order for relief in respect of the
Company or any Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the Company or any
Subsidiary bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Subsidiary
under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or any Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(g) (i) the Company or any Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent,
(ii) the Company or any Subsidiary consents to
the entry of a decree or order for relief in respect of the
Company or such Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it,
(iii) the Company or any Subsidiary files a
petition or answer or consent seeking reorganization or relief
under any applicable federal or state law,
(iv) the Company or any Subsidiary (1) consents
to the filing of such petition or the appointment of, or
taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of
the Company or such Subsidiary or of any substantial part of
its respective properties, (2) makes an assignment for the
benefit of creditors or (3) admits in writing its inability to
pay its debts generally as they become due, or
(v) the Company or any Subsidiary takes any
corporate action authorizing any such actions in this
paragraph (g).
The Company shall deliver to the Trustee within five days
after the occurrence thereof, written notice, in the form of an Officers'
Certificate, of any Default, its status and what action the Company is taking or
proposes to take with respect thereto. Unless the Corporate Trust Office of the
Trustee has received written notice of an Event of Default of the nature
described in this Section, the Trustee shall not be deemed to have knowledge of
such Event of Default for the purposes of Article Five or for any other purpose.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Sections 501(f) and (g)), shall occur and be continuing, the
Trustee or the Holders of not less than 25% in aggregate Principal Amount at
Issuance of the
61
Securities Outstanding may, and the Trustee at the request of the Holders of not
less than 25% in aggregate Principal Amount at Issuance of the Securities
Outstanding shall, declare an amount equal to the Accreted Principal Amount of
the Securities plus accrued and unpaid cash interest (including Contingent
Interest and Additional Amounts) thereon through the date of such declaration to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders of the Securities). Thereupon the Trustee
may, at its discretion, proceed to protect and enforce the rights of the Holders
of the Securities by appropriate judicial proceeding. If an Event of Default
specified in clause (f) or (g) of Section 501 occurs and is continuing, then an
amount equal to the Accreted Principal Amount of all the Securities through the
occurrence of such event, together with any accrued and unpaid cash interest
(including Contingent Interest and Additional Amounts) through the occurrence of
such event, shall ipso facto become and be immediately due and payable, without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been
made but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate Principal Amount at Issuance of the Securities
Outstanding, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel,
(ii) all overdue interest (including Contingent
Interest and Additional Amounts) on all Securities,
(iii) the Accreted Principal Amount on any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at a rate
borne by the Securities, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest (including
Contingent Interest and Additional Amounts) at the rate borne
by the Securities; and
(b) all Events of Default, other than the non-payment of
the Accreted Principal Amount and any accrued and unpaid cash interest
(including any unpaid Contingent Interest and Additional Amounts) on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 513.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
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(a) default is made in the payment of any interest
(including Contingent Interest and Additional Amounts) on any Security when such
interest becomes due and payable and such default continues for a period of 30
days, or
(b) default is made in the payment of the principal of or
premium, if any, or Principal Accretion, if any, on any Security at the Stated
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, subject to Article Twelve, the whole amount then due
and payable on such Securities for the Accreted Principal Amount through such
date and premium, if any, and accrued and unpaid cash interest (including
Contingent Interest and Additional Amounts), with interest upon the overdue
principal and premium, if any, and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest, at the rate
borne by the Securities; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein or therein,
or to enforce any other proper remedy, subject however to Section 512.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor, upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Accreted Principal Amount,
cash interest, Contingent Interest, Additional Amounts, the Redemption Price,
the Optional Repurchase Price, or the Fundamental Change Repurchase Price of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of the
Accreted Principal Amount, cash interest, Contingent Interest, Additional
Amounts, the Redemption Price, the Optional Repurchase Price, or the Fundamental
Change Repurchase Price of the Securities owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) subject to Article Twelve, to collect and receive any
moneys, securities or other property payable or deliverable upon any conversion
or exchange of Securities or upon any such claims and to distribute the same;
and any custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: Subject to Article Twelve, to the payment of the
amounts then due and unpaid upon the Securities for Accreted Principal Amount,
cash interest, Contingent Interest,
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Additional Amounts, the Redemption Price, the Optional Repurchase Price, or the
Fundamental Change Repurchase Price of the Securities, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest; and
THIRD: Subject to Article Twelve, the balance, if any, to the
Person or Persons entitled thereto, including the Company, provided that all
sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in Principal Amount
at Issuance of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in Principal Amount at Issuance of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, but
subject to Article Twelve, the Holder of any Security shall have the right on
the terms stated herein, which is absolute and unconditional, to receive payment
of the Accreted Principal Amount, the Redemption Price, the Optional Repurchase
Price, or the Fundamental Change Repurchase Price of the Securities and (subject
to Section 309) cash interest (including Contingent Interest and
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Additional Amounts on such Security ) on the Stated Maturity expressed in such
Security (or, in the case of redemption or repurchase, on the Redemption Date or
repurchase date), and to convert the Securities in accordance with Article Four
hereof, and to institute suit for the enforcement of any such payment or the
right to convert, and such rights shall not be impaired without the consent of
such Holder, subject to Article Twelve.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate Principal
Amount at Issuance of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture or expose the Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
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This Section 512 shall be in lieu of Section 316(a)(1)(A) of
the Trust Indenture Act and such Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate Principal
Amount at Issuance of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past Default hereunder and its consequences, except
a Default
(a) in the payment of the Accreted Principal Amount, or
accrued and unpaid interest (including Additional Amounts or Contingent
Interest) on any Security, the Redemption Price, Optional Repurchase Price or
Fundamental Change Repurchase Price; or
(b) in respect of a failure to convert any security into
Common Stock as provided in Article Four or elsewhere in this Indenture; or
(c) in respect of a covenant or a provision hereof which
under Article Nine cannot be modified or amended without the consent of a higher
percentage of the Principal Amount at Issuance of the Outstanding Securities
affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
This Section 513 shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in Principal Amount at Issuance of the Outstanding
Securities, or to any suit instituted by any Holder pursuant to Section 508
hereof.
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Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any
portion of the Accreted Principal Amount, Redemption Price, Fundamental Change
Repurchase Price, Optional Repurchase Price, plus accrued and unpaid cash
interest (including Contingent Interest and Additional Amounts) on the
Securities contemplated herein or in the Securities or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 30 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default hereunder known to the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections
315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
therein or thereby in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence of the Trustee;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document; provided, that the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may deem fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers;
(i) the Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company, except as otherwise provided herein;
(j) money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law, except as
otherwise provided herein;
(k) if a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
Section 603. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and
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perform its obligations hereunder and that the statements made by it in any
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
The Company will be responsible for making all calculations
called for under this Security. These calculations include, but are not limited
to, determinations of accrued interest, including Contingent Interest and
Additional Amounts, the Redemption Price, the Conversion Price, the Optional
Repurchase Price, the Fundamental Change Repurchase Price, the Sale Price of the
Company's Common Stock and other calculations related to a Holder's conversion
rights. The Company will make these calculations in good faith and, absent
manifest error, the calculations will be final and binding on any Holder of this
Security. The Company will provide a schedule of its calculations to each of the
Trustee and the Conversion Agent, and each of the Trustee and the Conversion
Agent is entitled to rely upon the accuracy of such calculations with
independent verification. The Trustee may forward the Company's calculations to
any Holder of this Security upon request.
Section 604. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar, Conversion
Agent, Bid Solicitation Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities,
with the same rights it would have if it were not the Trustee, Paying Agent,
Security Registrar, Conversion Agent, Bid Solicitation Agent or such other agent
and, subject to Trust Indenture Act Sections 310 and 311, may otherwise deal
with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee, Paying
Agent, Security Registrar, Conversion Agent, Bid Solicitation Agent or such
other agent.
Section 605. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee may invest all moneys
received by the Trustee, until used or applied as herein provided, in Temporary
Cash Investments in accordance with the written directions of the Company. The
Trustee shall not be liable for any losses incurred in connection with any
investments made in accordance with this Section 605, unless the Trustee acted
with gross negligence or in bad faith. With respect to any losses on investments
made under this Section 605, the Company is liable for the full extent of any
such loss.
Section 606. Compensation and Indemnification of Trustee, Conversion
Agent and Bid Solicitation Agent and the Trustee's Prior Claim.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation for all
services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of
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an express trust) set forth in a letter agreement executed by the Company and
the Trustee, as such agreement may be amended or supplemented, and the Company
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability, tax, assessment or other governmental charge (other than taxes
applicable to the Trustee's compensation hereunder) or expense incurred without
negligence or bad faith on such Trustee's part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and such Trustee's duties hereunder, including enforcement of this Indenture and
also including any liability which the Trustee may incur as a result of failure
to withhold, pay or report any tax, assessment or other governmental charge, and
the costs and expenses of defending itself against or investigating any claim of
liability (whether asserted by any Holder, the Company or any other Person) in
connection with the exercise or performance of any of its powers or duties under
this Indenture. The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute an additional obligation hereunder and shall survive
the satisfaction and discharge of this Indenture.
The Company covenants and agrees to pay to the Conversion
Agent from time to time, and the Trustee shall be entitled to, such compensation
for all services rendered by it hereunder (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
to the extent set forth in a letter agreement executed by the Company and the
Conversion Agent, as such agreement may be amended or supplemented, and the
Company covenants and agrees to pay or reimburse the Conversion Agent and each
predecessor Conversion Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Conversion Agent and each predecessor
Conversion Agent for, and to hold it harmless against, any loss, liability, tax,
assessment or other governmental charge (other than taxes applicable to the
Conversion Agent's compensation hereunder) or expense incurred without
negligence or bad faith on such Conversion Agent's part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and such Conversion Agent's duties hereunder, including enforcement of
this Indenture and also including any liability which the Conversion Agent may
incur as a result of failure to withhold, pay or report any tax, assessment or
other governmental charge, and the costs and expenses of defending itself
against or investigating any claim of liability (whether asserted by any Holder,
the Company or any other Person) in connection with the exercise or performance
of any of its powers or duties under this Indenture. The obligations of the
Company under this Section to compensate and indemnify the Conversion Agent and
each predecessor Conversion Agent and to pay or reimburse the
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Conversion Agent and each predecessor Conversion Agent for expenses,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture.
All payments and reimbursements pursuant to this Section 606
shall be made with interest at the rate borne by the Securities.
As security for the performance of the obligations of the
Company under this Section 606, the Trustee shall have a Lien prior to the
Securities upon all property and funds held or collected by the Trustee, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of any
amounts due under this Section 606 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Securities may be so
subordinate), and the Securities shall be subordinate to the Trustee's right to
receive such payment.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $250,000,000, to the
extent there is an institution eligible and willing to serve. The Trustee shall
be a participant in the Depository Trust Company and FAST distribution systems.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. The Corporate Trust Office shall initially be located at ▇▇▇▇▇ Fargo
Bank, National Association, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Corporate Trust Department.
Section 609. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee under
Section 610.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors of the Company, a copy of which shall be delivered to the
resigning Trustee and a copy to the successor trustee. If an instrument of
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acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor trustee.
If, within one year after such removal or incapability, or the occurrence of
such vacancy, a successor trustee shall be appointed by Act of the Holders of a
majority in Principal Amount at Issuance of the Outstanding Securities delivered
to the Company and the retiring Trustee, the successor trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
trustee and supersede the successor trustee appointed by the Company. If no
successor trustee shall have been so appointed by the Company or the Holders of
the Securities and accepted appointment in the manner hereinafter provided, the
Holder of any Security who has been a bona fide Holder for at least six months
may, subject to Section 514, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges then unpaid, such retiring
Trustee shall, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
Trustee or such successor trustee to secure any amounts then due such Trustee
pursuant to the provisions of Section 606.
No successor Trustee with respect to the Securities shall
accept appointment as provided in this Section 610 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Sixth and
shall have a combined capital and surplus of at least $250,000,000.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 610, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 609. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under Trust Indenture Act
Section 310(a) and this Article Sixth and shall have a combined capital and
surplus of at least
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$250,000,000, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 612. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to the Trust Indenture Act Section 311(a) to the
extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act
Section 312(b) with other Holders with respect to their rights under this
Indenture or the Securities, and the Trustee shall comply with Trust Indenture
Act Section 312(b). The Company, the Trustee, the Security
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Registrar and any other Person shall have the protection of Trust Indenture Act
312(c). Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities, the Trustee shall transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, as provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and to the extent required by Trust
Indenture Act Section 313(a).
Section 704. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company, with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(c) transmit or cause to be transmitted by mail to all
Holders, as their names and addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to by filed by the Company, pursuant
to Subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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Notwithstanding the foregoing, but solely to the extent
permitted by the Trust Indenture Act, if the Company merges or consolidates with
or sells, assigns, transfers, conveys or otherwise disposes of all or
substantially all of its assets to a direct or indirect Wholly-Owned Subsidiary
of the Company in a transaction or series of transactions in which such
Subsidiary assumes all or substantially all of the Indebtedness of the Company
(other than the Securities) and the Company remains the obligor on the
Securities, and as a result of such transactions the Company and this
Wholly-Owned Subsidiary are permitted by the rules and regulations of the
Commission to file and/or submit periodic reports collectively on behalf of the
consolidated Company, then in such event the Company shall be deemed to comply
with this Article Seven to the extent the filings by the Company together with
such Wholly-Owned Subsidiary comply with the rules and regulations of the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.
(a) The Company shall not, in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other Person or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets as an entirety to any
Person or group of affiliated Persons, or permit any of its Subsidiaries to
enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposal of all or substantially all of the properties and
assets of the Company and its Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (1) the Company shall be the
continuing corporation, or (2) the Person (if other than the
Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all
or substantially all of the properties and assets of the
Company and its Subsidiaries on a Consolidated basis (the
"Surviving Entity") shall be a corporation, a limited
liability company, limited partnership, partnership, trust or
other entity duly organized and validly existing under the
laws of the United States of America, any state thereof or the
District of Columbia and such Person assumes, by a
supplemental indenture in a form reasonably satisfactory to
the Trustee, all the obligations of the Company under the
Securities and this Indenture and the Registration Rights
Agreement, and this Indenture and the Registration Rights
Agreement shall remain in full force and effect;
(ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and
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(iii) the Company or the Surviving Entity shall
have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, transfer, sale,
assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with this
Indenture and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Notwithstanding the foregoing, the Company may merge or
consolidate with or into to sell, assign, transfer, convey or otherwise dispose
of all or substantially all of its assets to a direct or indirect Wholly Owned
Subsidiary of the Company without complying with the above provisions in a
transaction or series of transactions in which the Company remains the obligor
on the Securities.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture, the
Registration Rights Agreement and the Securities with the same effect as if such
successor had been named as the Company herein and in the Securities. When a
successor assumes all the obligations of its predecessor under this Indenture
and the Securities, the predecessor shall be released from those obligations;
provided that in the case of a transfer by lease, the predecessor shall not be
released from the payment of principal and interest (including Contingent
Interest and Additional Amounts) on the Securities and the Registration Rights
Agreement.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, or agreements
or other instruments, in form and substance satisfactory to the Trustee, for any
of the following purposes:
(a) to evidence the succession of another Person to the
Company or any other obligor upon the Securities, and the assumption by any such
successor of the covenants of the Company or such obligor herein and in the
Securities, in each case in compliance with the provisions of this Indenture;
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(b) to add to the covenants of the Company or any other
obligor upon the Securities for the benefit of the Holders, or to add additional
opportunities for optional redemption at the option of the Holder or to
surrender any right or power herein conferred upon the Company or any other
obligor upon the Securities, as applicable, herein or in the Securities;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture or the Securities; provided that, in each case,
such provisions shall not adversely affect the interests of the Holders;
(d) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a guarantor;
(f) to evidence and provide the acceptance of the
appointment of a successor trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise; or
(h) to provide for uncertificated Securities in place of
or in addition to certificated Securities.
Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
With the consent of the Holders of not less than a majority in
aggregate Principal Amount at Issuance of the Outstanding Securities, by Act of
said Holders delivered to the Company and the Trustee, the Company when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto or agreements or other instruments in form and
substance satisfactory to the Trustee for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture or the Securities; provided, however, that no such supplemental
indenture, agreement or instrument shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest (including Contingent Interest and Additional
Amounts) on, any Security, or reduce the Principal Amount at Issuance thereof or
the rate of interest (including Contingent Interest and Additional Amounts)
thereon or any premium payable upon the redemption thereof, or alter the manner
of calculation or rate of accrual of Principal Accretion on any Security or
change the coin or currency in which the principal of any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the
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Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or with respect to conversion of the Securities;
(b) amend, change or modify the obligation of the Company
to make and consummate an offer to repurchase Securities upon a Fundamental
Change in the event of a Fundamental Change in accordance with Article Fourteen,
including amending, changing or modifying any definitions with respect thereto;
(c) reduce the percentage in Principal Amount at Issuance
of the Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(d) modify any of the provisions of this Section or
Sections 513 or 1010, except to increase the percentage in Principal Amount at
Issuance of the Outstanding Securities, the consent of whose Holders is required
for any such actions or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Security affected thereby;
(e) except as otherwise permitted under Article Eight,
consent to the assignment or transfer by the Company of any of its rights and
obligations under this Indenture; or
(f) amend or modify any of the provisions of this
Indenture relating to the subordination of the Securities in any manner adverse
to the Holders of the Securities;
(g) adversely affect the right of Holders to convert
Securities other than as provided in this Indenture; or
(h) reduce the Principal Amount at Issuance, the Accreted
Principal Amount, accrued Principal Accretion, the Redemption Price, the
Optional Repurchase Price or the Fundamental Change Repurchase Price of any
Security, or amend or modify in any manner adverse to the Holders of Securities
the Company's obligations to make such payments, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise.
Upon the written request of the Company, accompanied by a copy
of a Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall, subject to Section 903, join with the
Company in the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
agreement or instrument, but it shall be sufficient if such Act shall approve
the substance thereof.
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Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 602 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture, agreement or instrument is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture, agreement or instrument which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
Subject to the provisions of Article Twelve, the Company will
duly and punctually pay the Accreted Principal Amount, interest (including
Contingent Interest and Additional Amounts) on the Securities in accordance with
the terms of the Securities and this Indenture.
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Section 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency where Securities
may be presented or surrendered for purchase or payment. The Company also will
maintain an office or agency where Securities may be surrendered for
registration of transfer, redemption or exchange and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location and any change in the location of any such offices or agencies. If at
any time the Company shall fail to maintain any such required offices or
agencies or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
office of the agent of the Trustee described above and the Company hereby
appoints such agent as its agent to receive all such presentations, surrenders,
notices and demands.
The Company will also maintain an office or agency where
Securities may be presented for conversion (which may be the office of the
Trustee described above if consented to by the Trustee). The Company will give
written notice to the Trustee of the location and any change in the office. If
at any time the Company shall fail to maintain such office, Securities may be
presented for conversion at the office of the Company.
The Company may from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes, and may from time to time rescind such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company
will, before each due date of the principal of, premium, if any, or interest on
any Securities, deposit with a Paying Agent a sum in same day funds sufficient
to pay the principal, premium, if any, or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
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(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company
(or any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest;
(c) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee shall serve as the Paying Agent.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will promptly be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Subsidiary; provided, however,
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that the Company shall not be required to preserve any such right or franchise
or the corporate existence of any such Subsidiary if the Board of Directors of
the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof would not reasonably be expected to have a material
adverse effect on the ability of the Company to perform its obligations
hereunder; and provided, further, however, that the foregoing shall not prohibit
a sale, transfer or conveyance of a Subsidiary or any of its assets in
compliance with the terms of this Indenture.
Section 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of
the Company or any Subsidiary, except for any Lien if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Company to perform its obligations hereunder;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with generally accepted
accounting principles consistently applied.
Section 1006. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any Subsidiary or used or held for use in the conduct of its business
or the business of any Subsidiary to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be consistent with sound business practice and necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not reasonably expected to have a material adverse effect on the ability of the
Company to perform its obligations hereunder.
Section 1007. Insurance.
The Company will at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be
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responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties.
Section 1008. Provision of Financial Statements.
(a) Whether or not the Company is subject to Section
13(a) or 15(d) of the Exchange Act, the Company shall, to the extent permitted
under the Exchange Act, file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Sections 13(a) or 15(d) if the Company were
so subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost.
Notwithstanding the foregoing, but solely to the extent
permitted by the Trust Indenture Act, if the Company merges or consolidates with
or sells, assigns, transfers, conveys or otherwise disposes of all or
substantially all of its assets to a direct or indirect Wholly-Owned Subsidiary
of the Company in a transaction or series of transactions in which such
Subsidiary assumes all or substantially all of the Indebtedness of the Company
(other than the Securities) and the Company remains the obligor on the
Securities, and as a result of such transactions the Company and this
Wholly-Owned Subsidiary are permitted by the rules and regulations of the
Commission to file and/or submit periodic reports collectively on behalf of the
consolidated Company, then in such event the Company shall be deemed to comply
with this Section 1008(a) to the extent the filings by the Company together with
such Wholly-Owned Subsidiary comply with the rules and regulations of the
Commission.
(b) So long as any of the Securities remain outstanding,
the Company will make available to any prospective purchaser of Securities or
beneficial owner of Securities in connection with any sale of Securities the
information required by Rule 144A(d)(4) under the Securities Act, until such
time as the holders of Securities have disposed of such Securities pursuant to
an effective registration statement under the Securities Act.
Section 1009. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before
a date not more than 60 days after the end of each fiscal quarter and not more
than 120 days after the end of each fiscal year of the Company ending after the
date hereof, a written statement signed by two executive officers of the
Company, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating
whether or not, after a review of
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the activities of the Company during such year or such quarter and of the
Company's performance under this Indenture, to the best knowledge, based on such
review, of the signers thereof, the Company has fulfilled all its obligations
and is in compliance with all conditions and covenants under this Indenture
throughout such year or quarter, as the case may be, and, if there has been a
Default specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and
is continuing, or if the Trustee or any Holder or the trustee for or the holder
of any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default (other than
with respect to Indebtedness in the principal amount of less than $10,000,000),
the Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an Officers'
Certificate specifying such Default, Event of Default, notice or other action
within five Business Days of its occurrence.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1006 and 1007, if, before
or after the time for such compliance, the Holders of not less than a majority
in aggregate Principal Amount at Issuance of the Securities at the time
Outstanding shall, by Act of such Holders, waive such compliance in such
instance with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
The Securities may be redeemed, at the Company's option, in
whole or from time to time in part, for cash, at any time on or after June 15,
2010, upon not less than 30 nor more than 60 days' prior notice by first class
mail to each Holder of Securities to be redeemed at its address appearing in the
Security Register and prior to the Stated Maturity of the Securities, at a
redemption price equal to the Accreted Principal Amount of the Security so
redeemed plus accrued and unpaid cash interest (including Contingent Interest
and Additional Amounts) to but not including the Redemption Date. The Redemption
Prices on June 15, 2010 and on each subsequent December 15 and June 15 and
thereafter prior to June 15, 2023 and on June 15, 2023 are set forth in the
table below. In addition to the Redemption Prices set forth on such table, the
Redemption Price between the dates listed would be the Accreted Principal Amount
on the earlier date plus accrued and unpaid interest (including Contingent
Interest and Additional Amounts) to but excluding the Redemption Date (subject
to the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date) that has accrued on a Security since
the immediately preceding date on which interest was paid.
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(3)
(1) (2) Accreted
Redemption Date Principal Amount Accrued Principal Principal Amount
at Issuance Accretion (1)+(2)
June 15, 2010 $1,000.00 $ 0.00 $1,000.00
December 15, 2010 $1,000.00 $ 23.13 $1,023.13
June 15, 2011 $1,000.00 $ 46.78 $1,046.78
December 15, 2011 $1,000.00 $ 70.99 $1,070.99
June 15, 2012 $1,000.00 $ 95.76 $1,095.76
December 15, 2012 $1,000.00 $121.10 $1,121.10
June 15, 2013 $1,000.00 $147.02 $1,147.02
December 15, 2013 $1,000.00 $173.55 $1,173.55
June 15, 2014 $1,000.00 $200.69 $1,200.69
December 15, 2014 $1,000.00 $228.45 $1,228.45
June 15, 2015 $1,000.00 $256.86 $1,256.86
December 15, 2015 $1,000.00 $285.93 $1,285.93
June 15, 2016 $1,000.00 $315.66 $1,315.66
December 15, 2016 $1,000.00 $346.09 $1,346.09
June 15, 2017 $1,000.00 $377.22 $1,377.22
December 15, 2017 $1,000.00 $409.06 $1,409.06
June 15, 2018 $1,000.00 $441.65 $1,441.65
December 15, 2018 $1,000.00 $474.99 $1,474.99
June 15, 2019 $1,000.00 $509.09 $1,509.09
December 15, 2019 $1,000.00 $543.99 $1,543.99
June 15, 2020 $1,000.00 $579.70 $1,579.70
December 15, 2020 $1,000.00 $616.23 $1,616.23
June 15, 2021 $1,000.00 $653.60 $1,653.60
December 15, 2021 $1,000.00 $691.84 $1,691.84
June 15, 2022 $1,000.00 $730.97 $1,730.97
December 15, 2022 $1,000.00 $771.00 $1,771.00
June 15, 2023 $1,000.00 $811.95 $1,811.95
If any Security is to be redeemed in part only, a new Security
in Principal Amount at Issuance equal to the unredeemed portion of Principal
Amount at Issuance will be issued. If a portion of a Holder's Securities is
selected for partial redemption and such Holder converts a portion of its
Securities, the converted portion will be deemed to be of the portion selected
for redemption.
No sinking fund is provided for the Securities.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
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Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 35 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata, by lot or
such other method as the Trustee shall deem fair and reasonable, and the amounts
to be redeemed may be equal to $1,000 of aggregate Principal Amount at Issuance
or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the Principal Amount at Issuance of such Security which has been
or is to be redeemed.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price, or if then not ascertainable,
the manner of calculation thereof;
(c) the Conversion Rate;
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(d) the name and address of the Paying Agent and
Conversion Agent;
(e) that Securities called for redemption may be
converted at any time before the close of business on the second Business Day
immediately preceding the Redemption Date, even if not otherwise convertible at
such time;
(f) that Holders who want to convert Securities must
satisfy the requirements set forth in Article Four of the Indenture and in the
Securities;
(g) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(h) in the case of a Security to be redeemed in part, the
Principal Amount at Issuance such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or Securities in
the aggregate Principal Amount at Issuance equal to the unredeemed portion
thereof will be issued;
(i) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(j) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price) interest
(including Contingent Interest) thereon shall cease to accrue on and after said
date;
(k) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(l) the CUSIP number, if any, relating to such
Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice to any Holder of any
Security designated for redemption as a whole or in part, or any defect in any
such notice, shall not affect the validity of the proceedings for the redemption
of any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in same day funds sufficient to pay the Redemption Price of and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date
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other than Securities or portions of Securities called for redemption which on
or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. The Trustee or the Paying Agent shall as
promptly as possible return to the Company any money not required for that
purpose because of the conversion of Securities pursuant to Article Four hereof.
When the Redemption Date falls on an Interest Payment Date, payments of interest
due on such date are to be paid as provided hereunder as if no such redemption
were occurring.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to but not including the Redemption Date except for Securities
that are converted in accordance with the terms of this Indenture; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
Section 1108. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount at Issuance equal to, and
in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
Section 1109. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment banks or other purchasers
to purchase such Securities by paying to the Trustee in trust for the Holders,
on or prior to the Redemption Date, an amount that, together with any amounts
deposited with the Trustee by the Company for the redemption of such Securities,
is not less than the Redemption Price of, and any accrued and unpaid interest
(including Contingent
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Interest and Additional Amounts) with respect to, such Securities.
Notwithstanding anything to the contrary contained in this Article Eleven, the
obligation of the Company to pay the Redemption Prices of such Securities shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Four) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the Business Day prior to the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption of
Securities. Without the Trustee's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Securities between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
ARTICLE TWELVE
RANKING
Section 1201. Ranking.
This Security constitutes a senior unsecured general
obligation of the Company, ranking equally with other existing and future senior
unsecured Indebtedness the Company has incurred or may incur, ranking senior in
right of payment to any future Indebtedness that is expressly made subordinate
to the Securities and ranking subordinate to secured Indebtedness the Company
has incurred or guaranteed Indebtedness the Company has incurred.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.
When (1) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any Securities
which have been destroyed, lost or stolen and in lieu of or in substitution for
which other Securities shall have been authenticated and delivered) and not
theretofore canceled, or (2) all the Securities not theretofore canceled or
delivered to the Registrar for cancellation shall have (a) been deposited for
conversion and the Company shall deliver to the Holders shares of Common Stock
sufficient to pay all amounts
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owing in respect of all Securities (other than any Securities which shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Securities shall have been authenticated and delivered) not
theretofore canceled or delivered to the Registrar for cancellation or (b)
become due and payable on their Stated Maturity, Optional Repurchase Date,
Fundamental Change Repurchase Date or Redemption Date, as applicable, and the
Company shall deposit with the Trustee cash sufficient to pay all amounts owing
in respect of all Securities (other than any Securities which shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Securities shall have been authenticated and delivered) not theretofore
canceled or delivered to the Registrar for cancellation, including the Accreted
Principal Amount and interest (including Contingent Interest and Additional
Amounts, if any) accrued and unpaid to such Stated Maturity, Optional Repurchase
Date, Fundamental Change Repurchase Date or Redemption Date, as the case may be,
and if in either case (1) or (2) the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company, then the Indenture with respect
to the Securities shall cease to be of further effect (except as to (i)
remaining rights of registration of transfer, substitution and exchange and
conversion of Securities; (ii) rights hereunder of Holders to receive payments
of the amounts then due, including interest (including Contingent Interest, if
any) and Additional Amounts with respect to the Securities and the other rights,
duties and obligations of Holders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee; and (iii) the rights,
obligations and immunities of the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar under the Indenture with respect to the
Securities), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 1303 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging the Indenture with respect to the
Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and,
if United States dollars shall have been deposited with the Trustee pursuant to
this Section, the obligations of the Trustee under Section 1302 and the last
paragraph of Section 1003 shall survive.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars deposited with the Trustee pursuant to Section
1031 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture (Including, without limitation, Section
605), to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal of, premium, if any, and interest on
the Securities for whose payment such United States dollars have been deposited
with the Trustee.
Section 1302. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money to the Holders entitled thereto by reason of any order or judgment of any
court of governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under the Indenture with respect to
the Securities and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1301 until such time as the Trustee or
the Paying Agent is permitted to apply all such money in accordance with the
Indenture and the
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Securities to the Holders entitled thereto; provided, however, that if the
Company makes any payment of principal amount or interest (including Contingent
Interest) of any Securities following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
Section 1303. Officers' Certificate; Opinion of Counsel.
Upon any application or demand by the Company to the Trustee
to take any action under Section 1301, the Company shall furnish to the Trustee
(A) an Officers' Certificate stating that all conditions precedent, if any,
provided for in the Indenture relating to the proposed action have been complied
with and that such satisfaction and discharge will not result in a breach or
violation of or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which the Company
is bound, and (B) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Opinions of counsel required to be delivered under this
Section may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS
UPON A FUNDAMENTAL CHANGE
Section 1401. Fundamental Change Put.
(a) In the event that a Fundamental Change shall occur,
each Holder shall have the right, at the Holder's option, but subject to the
provisions of Section 1401 hereof, to require the Company to repurchase, and
upon the exercise of such right, the Company shall repurchase, all of such
Holder's Securities not theretofore called for redemption, or any portion of the
Principal Amount at Issuance thereof that is equal to $1,000 or an integral
multiple thereof, as directed by such Holder pursuant to Section 1401, on the
date (the "Fundamental Change Repurchase Date") that is a Business Day no later
than 35 Business Days after the date of notice pursuant to Section 1401(b) of
the occurrence of a Fundamental Change (subject to extension to comply with
applicable law). The Company shall be required to purchase such Securities at a
purchase price in cash equal to 100% of the Principal Amount at Issuance plus
Principal Accretion and any accrued and unpaid cash interest (including
Contingent Interest and Additional Amounts) to, but excluding, the Fundamental
Change Repurchase Date (the "Fundamental Change Repurchase Price"); provided,
however, that installments of interest (including Contingent Interest and
Additional Amounts) on Securities whose Maturity is prior to or on the
Fundamental Change Repurchase Date shall be payable to the Holders of such
Securities, registered as such on the relevant Regular Record Date.
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(b) On or before the 20th day after the occurrence of a
Fundamental Change, the Company shall mail a written notice of the Fundamental
Change to the Trustee (and the Paying Agent if the Trustee is not then acting as
Paying Agent) and to all Holders at their addresses shown in the Security
Register of the Registrar, and to beneficial owners as required by applicable
law. The notice shall include the form of a Fundamental Change Repurchase Notice
to be completed by the Holder and shall state:
(1) the date of such Fundamental Change and,
briefly, the events causing such Fundamental Change;
(2) the date by which the Fundamental Change
Repurchase Notice pursuant to this Section 1401 must be given;
(3) the Fundamental Change Repurchase Date;
(4) the Fundamental Change Repurchase Price;
(5) the name and address of each Paying Agent
and Conversion Agent;
(6) the Conversion Rate and any adjustments
thereto;
(7) that Securities as to which a Fundamental
Change Repurchase Notice has been given may be converted into Common
Stock pursuant to Article Four of this Indenture only to the extent
that the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) the procedures that the Holder must follow
to exercise rights under this Section 1401 and a brief description of
such rights;
(9) that Securities must be surrendered to the
Paying Agent to collect payments of the Fundamental Change Repurchase
Price and interest, if any;
(10) briefly, the conversion rights of the
Securities, and that the Holder must satisfy the requirements set forth
in the Indenture in order to convert the Securities;
(11) the procedures for withdrawing a Fundamental
Change Repurchase Notice, including a form of notice of withdrawal;
(12) that, unless the Company defaults in making
payment of such Fundamental Change Repurchase Price, interest
(including Contingent Interest and Additional Amounts), if any, and
Principal Accretion on Securities surrendered for purchase will cease
to accrue on and after the Fundamental Change Repurchase Date; and
(13) the CUSIP number of the Securities.
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At the Company's request, the Trustee or the Paying Agent
shall give such notice in the Company's name and at the Company's expense;
provided, however, that in all cases, the text of such notice shall be prepared
by the Company.
If any of the Securities is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depositary applicable to the repurchase of Global
Securities.
Simultaneously with providing such notice, the Company will
publish a notice containing this information in a newspaper of general
circulation in the City of New York or publish the information on its website or
through such other public medium as the Company may use at that time.
(c) A Holder may exercise its rights specified in
subsection (a) of this Section 1401 upon delivery of a written notice (which
shall be in substantially the form included on the reverse side of the
Securities entitled "Option of Holder to Elect Purchase" hereto and which may be
delivered by letter, overnight courier, hand delivery, facsimile transmission or
in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Depositary's
customary procedures) of the exercise of such rights (a "Fundamental Change
Repurchase Notice") to any Paying Agent at any time on or before the 30th
Business Day after the date of the Company's notice of the Fundamental Change
(subject to extension to comply with applicable law).
The Fundamental Change Repurchase Notice delivered by a Holder
shall state (i) if certificated Securities, the certificate number or numbers of
the Security or Securities which the Holder will deliver to be purchased (if not
certificated, the notice must comply with appropriate Depositary procedures),
(ii) the portion of the Principal Amount at Issuance of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or an integral
multiple thereof, and (iii) that such Security shall be purchased pursuant to
the terms and conditions specified in the Securities and this Indenture.
Delivery of a Security to the Paying Agent by book-entry
transfer or physical delivery prior to, on or after the Fundamental Change
Repurchase Date (together with all necessary endorsements) at the offices of the
Paying Agent is a condition to receipt by the Holder of the Fundamental Change
Repurchase Price therefor; provided, however, that such Fundamental Change
Repurchase Price shall be so paid pursuant to this Section 1401 only if the
Security so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice, as
determined by the Company.
The Company shall purchase from the Holder thereof, pursuant
to this Section 1401, a portion of a Security if the Principal Amount at
Issuance of such portion is $1,000 or an integral multiple of $1,000. Provisions
of the Indenture that apply to the purchase of all of a Security pursuant to
Sections 1401 through 1406 also apply to the purchase of such portion of such
Security.
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Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Fundamental Change Repurchase Notice
contemplated by this subsection (c) shall have the right to withdraw such
Fundamental Change Repurchase Notice in whole or in a portion thereof that is a
Principal Amount at Issuance of $1,000 or in an integral multiple thereof at any
time prior to the close of business on the Business Day next preceding the
Fundamental Change Repurchase Date by delivery of a written notice of withdrawal
to the Paying Agent in accordance with Section 1402.
A Paying Agent shall promptly notify the Company of the
receipt by it of any Fundamental Change Repurchase Notice or written withdrawal
thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Fundamental Change Repurchase Notice may be delivered
or withdrawn and such Securities may be surrendered or delivered for purchase in
accordance with the Applicable Procedures as in effect from time to time.
Section 1402. Effect of Fundamental Change Repurchase Notice.
Upon receipt by any Paying Agent of the Fundamental Change
Repurchase Notice specified in Section 1401(c), the Holder of the Security in
respect of which such Fundamental Change Repurchase Notice was given shall
(unless such Fundamental Change Repurchase Notice is withdrawn as specified
below) thereafter be entitled to receive the Fundamental Change Repurchase Price
with respect to such Security. Such Fundamental Change Repurchase Price shall be
paid to such Holder promptly following the later of (a) the Fundamental Change
Repurchase Date with respect to such Security (provided the conditions in
Section 1401(c) have been satisfied) and (b) the time of book-entry transfer or
delivery of such Security to a Paying Agent by the Holder thereof in the manner
required by Section 1401(c). Securities in respect of which a Fundamental Change
Repurchase Notice has been given by the Holder thereof may not be converted into
shares of Common Stock on or after the date of the delivery of such Fundamental
Change Repurchase Notice unless such Fundamental Change Repurchase Notice has
first been validly withdrawn.
A Fundamental Change Repurchase Notice may be withdrawn by
means of a written notice (which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in the
case of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Fundamental Change Repurchase Date,
specifying (i) the Principal Amount at Issuance of the Security or portion
thereof (which must be a Principal Amount at Issuance of $1,000 or an integral
multiple of $1,000 in excess thereof) with respect to which such notice of
withdrawal is being submitted, (ii) if certificated Securities have been issued,
the certificate numbers of the withdrawn Securities, or if not certificated,
such notice must comply with appropriate Depositary procedures, and (iii) the
Principal Amount at Issuance, if any, which remains subject to the Fundamental
Change Repurchase Notice.
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Section 1403. Deposit of Fundamental Change Repurchase Price.
On or before 11:00 a.m., New York City time, on the
Fundamental Change Repurchase Date or the Business Day following the Fundamental
Change Repurchase Date, the Company shall deposit with the Trustee or with a
Paying Agent (other than the Company or an Affiliate of the Company) an amount
of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Fundamental Change Repurchase Price of all the
Securities or portions thereof that are to be purchased as of such Fundamental
Change Repurchase Date. The manner in which the deposit required by this Section
1403 is made by the Company shall be at the option of the Company, provided that
such deposit shall be made in a manner such that the Trustee or a Paying Agent
shall have immediately available funds on the Fundamental Change Repurchase
Date.
If a Paying Agent holds, in accordance with the terms hereof,
money sufficient to pay the Fundamental Change Repurchase Price of any Security
for which a Fundamental Change Repurchase Notice has been tendered and not
withdrawn in accordance with this Indenture on the Business Day following the
Fundamental Change Repurchase Date then, on the Fundamental Change Repurchase
Date, such Security will cease to be outstanding and interest, including any
Contingent Interest and Additional Amounts, if any, and Principal Accretion on
the Securities will cease to accrue (whether or not book-entry transfer of the
Securities is made or whether or not the Securities are delivered to the Paying
Agent) and the rights of the Holder in respect thereof shall terminate (other
than the right to receive the Fundamental Change Repurchase Price and any
previously accrued and unpaid interest (including any Contingent Interest) and
Additional Amounts upon delivery or transfer of the Securities)). The Company
shall publicly announce the Principal Amount at Issuance of Securities purchased
as a result of such Fundamental Change on or as soon as practicable after the
Fundamental Change Repurchase Date.
Section 1404. Securities Purchased in Part.
Any Security that is to be purchased only in part shall be
surrendered at the office of a Paying Agent and promptly after the Fundamental
Change Repurchase Date the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of such authorized denomination or denominations
as may be requested by such Holder, in aggregate Principal Amount at Issuance
equal to, and in exchange for, the portion of the Principal Amount at Issuance
of the Security so surrendered that is not purchased.
Section 1405. Compliance with Securities Laws Upon Purchase of
Securities.
In connection with any offer to purchase or purchase of
Securities under Section 1401, the Company shall (a) comply with Rule 13e-4 and
Rule 14e-1 (or any successor to either such Rule), if applicable, under the
Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise
comply with all federal and state securities laws in connection with such offer
to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of
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the Company under Sections 1401 through 1406 to be exercised in the time and in
the manner specified therein.
Section 1406. Repayment to the Company.
To the extent that the aggregate amount of cash deposited by
the Company pursuant to Section 1403 exceeds the aggregate Fundamental Change
Repurchase Price together with interest (including Contingent Interest and
Additional Amounts), if any, thereon of the Securities or portions thereof that
the Company is obligated to purchase, then promptly after the Fundamental Change
Repurchase Date the Trustee or a Paying Agent, as the case may be, shall return
any such excess cash to the Company.
ARTICLE FIFTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS
Section 1501. Optional Put.
(a) All or a portion of the Securities shall be
repurchased by the Company on June 15, 2010, June 15, 2013 and June 15, 2018
(each, an "Optional Repurchase Date") at a price of 100% of the Accreted
Principal Amount plus any accrued and unpaid interest (including Contingent
Interest and Additional Amounts) to but not including the Optional Repurchase
Date (the "Optional Repurchase Price"), at the option of the Holder thereof. Any
Securities purchased on June 15, 2010 by the Company will be paid for in cash
only. Securities purchased on June 15, 2013 and June 15, 2018 by the Company may
be purchased in cash, shares of Common Stock or a combination of cash and shares
of Common Stock at the Company's option, provided, however that any accrued and
unpaid interest (including Contingent Interest and Additional Amounts), if any,
will be paid in cash.
The Company's right to exercise its election to purchase the
Securities pursuant to this Article Fifteen through the issuance of shares of
Common Stock shall be conditioned upon (1) the Company's not having given its
Company notice of an election to pay entirely in cash and its giving of timely
notice of election to purchase all or a specified percentage of the Securities
with shares of Common Stock as provided herein; (2) the registration of the
shares of Common Stock to be issued in respect of the payment of the Optional
Repurchase Price under the Securities Act or the Exchange Act, in each case, if
required for the initial issuance thereof; (3) any necessary qualification or
registration under applicable state securities laws or the availability of an
exemption from such qualification and registration; and (4) the receipt by the
Trustee of an Officers' Certificate and an Opinion of Counsel each stating that
(A) the terms of the issuance of the shares of Common Stock are in conformity
with this Indenture and (B) the shares of Common Stock to be issued by the
Company in payment of the Optional Repurchase Price in respect of Securities
have been duly authorized and, when issued and delivered pursuant to the terms
of this Indenture in payment of the Optional Repurchase Price in respect of the
Securities, will be validly issued, fully paid and non-assessable and, to the
best of such counsel's knowledge, free from preemptive rights, and, in the case
of such Officer's Certificate, stating that
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conditions (1), (2) and (3) above have been satisfied and, in the case of such
Opinion of Counsel, stating that conditions (2) and (3) above have been
satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 principal amount of
Securities and the Sale Price of a share of Common Stock on each Trading Day
during the period commencing on the first Trading Day of the period during which
the Market Price is calculated and ending three Business Days prior to the
applicable Optional Repurchase Date. The Company may pay the Optional Repurchase
Price (or any portion thereof) in shares of Common Stock only if the information
necessary to calculate the Market Price is published in The Wall Street Journal
or another daily newspaper of national circulation. If the foregoing conditions
are not satisfied with respect to a Holder or Holders prior to the close of
business on the Optional Repurchase Date and the Company has elected to
repurchase the Securities pursuant to this Article Fifteen through the issuance
of shares of Common Stock, the Company shall pay, without further notice, the
entire Optional Repurchase Price of the Securities of such Holder or Holders in
cash.
(b) On a date not less than 20 Business Days prior to the
Optional Repurchase Date, the Company shall mail a written notice to the Trustee
(and the Paying Agent if the Trustee is not then acting as Paying Agent) and to
all Holders at their addresses shown in the Security Register of the Registrar,
and to beneficial owners as required by applicable law. The notice shall include
the form of an Optional Repurchase Notice to be completed by the Holder and
shall state:
(1) the date by which the Optional Repurchase
Notice pursuant to this Section 1501 must be given;
(2) the Optional Repurchase Date;
(3) the Optional Repurchase Price;
(4) whether the Optional Repurchase Price will
be paid in cash in shares of Common Stock or in any combination
thereof, specifying the percentages of each, provided that the Company
will pay cash for fractional interests in shares of Common Stock;
(5) if the Optional Repurchase Price will be
paid in whole, or in part, in shares of Common Stock, the percentage of
the Optional Repurchase Price to be paid in shares of Common Stock,
that each Holder will receive shares of Common Stock with a Market
Price equal to such specified percentage of the Optional Repurchase
Price of the Securities held by such Holder (except any cash amount to
be paid in lieu of fractional shares), the method of calculating the
Market Price of the shares of Common Stock, and that because the Market
Price of shares of Common Stock will be determined prior to the
Optional Repurchase Date, Holders will bear the market risk with
respect to the value of the shares of Common Stock to be received from
the date such Market Price is determined to the Optional Repurchase
Date;
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(6) the name and address of each Paying Agent
and the Conversion Agent;
(7) the Conversion Rate and any adjustments
thereto;
(8) that Securities as to which an Optional
Repurchase Notice has been given may be converted into Common Stock
pursuant to Article Four hereof only if the applicable Optional
Repurchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(9) the procedures that the Holder must follow
to exercise rights under this Section and a brief description of such
rights;
(10) that Securities must be surrendered to the
Paying Agent to collect payment of the Optional Purchase Price and
interest, if any;
(11) briefly, the conversion rights of the
Securities, and that the Holder must satisfy the requirements set forth
in the Indenture in order to convert the Securities;
(12) the procedures for withdrawing an Optional
Repurchase Notice, including a form of notice of withdrawal;
(13) that, unless the Company defaults in making
payment of such Optional Repurchase Price, then cash interest
(including Contingent Interest), if any, and Principal Accretion on
Securities surrendered for purchase will cease to accrue on and after
the Optional Repurchase Date; and
(14) the CUSIP number of the Securities.
At the Company's request, the Trustee or the Paying Agent
shall give such notice in the Company's name and at the Company's expense;
provided, however, that in all cases, the text of such notice shall be prepared
by the Company.
If any of the Securities is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depositary applicable to the repurchase of Global
Securities.
For purposes of determining the existence of potential
fractional interests, all Securities subject to purchase by the Company held by
a Holder shall be considered together (no matter how many separate certificates
are to be presented). Each Holder whose Securities are purchased pursuant to
this Article Fifteen shall receive the same percentage of cash or shares of
Common Stock in payment of the Optional Repurchase Price for such Securities,
except (i) with regard to the payment of cash in lieu of fractional shares of
Common Stock and (ii) in the event that the Company is unable to purchase the
Securities of a Holder or Holders for shares of Common Stock because any
necessary qualifications or registrations of the shares of Common Stock under
applicable state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with
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respect to the consideration (or components or percentages of components
thereof) to be paid once the Company has given its Company Notice to Holders
except pursuant to this Section 1501 in the event of a failure to satisfy, prior
to the close of business on the Optional Repurchase Date, any condition to the
payment of the Optional Repurchase Price, in whole or in part, in shares of
Common Stock.
Simultaneously with providing such notice, the Company will
publish a notice containing this information in a newspaper of general
circulation in the City of New York or publish the information on its website or
through such other public medium as the Company may use at that time.
(c) A Holder may exercise its rights specified in
subsection (a) of this Section 1501 upon delivery of a written notice (which
shall be in substantially the form included on the reverse side of the
Securities entitled "Option of Holder to Elect Purchase" hereto and which may be
delivered by letter, overnight courier, hand delivery, facsimile transmission or
in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Depositary's
customary procedures) of the exercise of such rights (an "Optional Repurchase
Notice") to any Paying Agent at any time from the opening of business on the
date that is 20 Business Days prior to the Optional Repurchase Date until the
close of business on the Optional Repurchase Date.
The Optional Repurchase Notice delivered by a Holder shall
state (i) if certificated Securities have been issued, the certificate number or
numbers of the Security or Securities which the Holder will deliver to be
purchased (if not certificated, the notice must comply with appropriate
Depositary procedures), (ii) the portion of the Principal Amount at Issuance of
the Security which the Holder will deliver to be purchased, which portion must
be $1,000 or an integral multiple thereof, (iii) that such Security shall be
purchased pursuant to the terms and conditions specified in this Indenture, and
(iv) in the event the Company elects, pursuant to the notice the Company is
required to give, to pay the Optional Repurchase Price in shares of Common
Stock, in whole or in part, but the Optional Repurchase Price is ultimately to
be paid to the Holder entirely in cash because of any of the conditions to
payment of the Optional Repurchase Price or portion of the Optional Repurchase
Price in shares of Common Stock is not satisfied prior to the close of business
on the Optional Repurchase Date, whether the Holder elects to withdraw the
notice as to some or all of the Securities to which it relates or to receive
cash in respect of the entire Optional Repurchase Price for all Securities or
portions of Securities subject to such notice. If a Holder fails to indicate the
Holder's choice with respect to paragraph (iv), the Holder will be deemed to
have elected to receive cash in respect of the entire Optional Repurchase Price
for all Securities subject to the notice in these circumstances.
Delivery of a Security to the Paying Agent by book-entry
transfer or physical delivery prior to, on or after the Optional Repurchase Date
(together with all necessary endorsements) at the offices of the Paying Agent is
a condition to receipt by the Holder of the Optional Repurchase Price therefor;
provided, however, that such Optional Repurchase Price shall be so paid pursuant
to this Section 1501 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Optional
Repurchase Notice, as determined by the Company.
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The Company shall purchase from the Holder thereof, pursuant
to this Section 1501, a portion of a Security if the Principal Amount at
Issuance of such portion is $1,000 or an integral multiple of $1,000. Provisions
of the Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 1501 shall be consummated by the delivery of the
consideration to be received by the Holder (together with accrued and unpaid
cash interest, if any) promptly following the later of the Optional Repurchase
Date and the time of delivery of the Security. The Optional Repurchase Price may
only be paid in cash.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Optional Repurchase Notice contemplated by
this Section 1501 shall have the right to withdraw such Optional Repurchase
Notice at any time prior to the close of business on the Optional Repurchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 1502.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Optional Repurchase Notice or written notice of withdrawal
thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Optional Repurchase Notice may be delivered or
withdrawn and such Securities may be surrendered or delivered for purchase in
accordance with the Applicable Procedures as in effect from time to time.
(d) The Company may at its option add additional dates on
which Holders would have the right to require the Company to repurchase
Securities. The Company would be required to provide 60 days advance notice to
Holders of its nonbonding intention to add additional dates.
(e) There shall be no purchase of any Securities pursuant
to this Section 1501 if there has occurred (prior to, on or after, as the case
may be, the giving, by the Holders of such Securities, of the required Optional
Repurchase Notice) and is continuing an Event of Default (other than a default
in the payment of the Optional Repurchase Price and any accrued and unpaid cash
interest with respect to such Securities). The Paying Agent will promptly return
to the respective Holders thereof any Securities (x) with respect to which an
Optional Repurchase Notice has been withdrawn in compliance with this Indenture
or (y) held by it during the continuance of an Event of Default (other than a
default in the payment of the Optional Repurchase Price and any accrued and
unpaid cash interest with respect to such Securities) in which case, upon such
return, the Optional Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 1502. Effect of Optional Repurchase Notice.
Upon receipt by any Paying Agent of the Optional Repurchase
Notice specified in Section 1501, the Holder of the Security in respect of which
such Repurchase Notice was given
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shall (unless such Optional Repurchase Notice is withdrawn as specified below)
thereafter be entitled to receive the Optional Repurchase Price with respect to
such Security. Such Optional Repurchase Price shall be paid to such Holder
promptly following the later of (a) the Optional Repurchase Date with respect to
such Security (provided the conditions in Section 1501 have been satisfied) and
(b) the time of delivery of such Security to a Paying Agent by the Holder
thereof in the manner required by Section 1501. Securities in respect of which
an Optional Repurchase Notice has been given by the Holder thereof may not be
converted into shares of Common Stock on or after the date of the delivery of
such Optional Repurchase Notice unless such Optional Repurchase Notice has first
been validly withdrawn.
An Optional Repurchase Notice may be withdrawn by means of a
written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Optional Repurchase Date, specifying (i) the Principal Amount at Issuance of
the Security or portion thereof (which must be a Principal Amount at Issuance of
$1,000 or an integral multiple of $1,000 in excess thereof) with respect to
which such notice of withdrawal is being submitted, (ii) if certificated
Securities have been issued, the certificate numbers of the withdrawn
Securities, or if not certificated, such notice must comply with appropriate
Depositary procedures, and (iii) the Principal Amount at Issuance, if any, which
remains subject to the Optional Repurchase Notice.
Section 1503. Deposit of Optional Repurchase Price.
On or before 11:00 a.m., New York City time, on the Optional
Repurchase Date or the Business Day following the Optional Repurchase Date, the
Company shall deposit with the Trustee or with a Paying Agent (other than the
Company or an Affiliate of the Company) an amount of money (in immediately
available funds if deposited on such Business Day) and/or shares of Common
Stock, or a combination thereof, sufficient to pay the aggregate Optional
Repurchase Price of all the Securities or portions thereof that are to be
purchased as of such Optional Repurchase Date. The manner in which the deposit
required by this Section 1503 is made by the Company shall be at the option of
the Company, provided that such deposit shall be made in a manner such that the
Trustee or a Paying Agent shall have immediately available funds on the Optional
Repurchase Date.
If a Paying Agent holds, in accordance with the terms hereof,
money and/or shares of Common Stock sufficient to pay the Optional Repurchase
Price of any Security for which an Optional Repurchase Notice has been tendered
and not withdrawn in accordance with this Indenture on the Business Day
following the Optional Repurchase Date then, on the Optional Repurchase Date,
such Security will cease to be outstanding and interest, including any
Contingent Interest and Additional Amounts, if any, and Principal Accretion on
the Securities will cease to accrue (whether or not book-entry transfer of the
Securities is made or whether or not the Securities are delivered to the Paying
Agent) and the rights of the Holder in respect thereof shall terminate (other
than the right to receive the Optional Repurchase Price and any previously
accrued and unpaid interest (including any Contingent Interest) and Additional
Amounts upon delivery or transfer of the Securities)). The Company shall
publicly announce the
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Principal Amount at Issuance of Securities purchased pursuant to this Article
Fifteen on or as soon as practicable after the Optional Repurchase Date.
Section 1504. Securities Purchased in Part.
Any Security that is to be purchased only in part shall be
surrendered at the office of a Paying Agent and promptly after the Optional
Repurchase Date the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities, of such authorized denomination or denominations as may be
requested by such Holder, in aggregate Principal Amount at Issuance equal to,
and in exchange for, the portion of the Principal Amount at Issuance of the
Security so surrendered that is not purchased.
Section 1505. Compliance with Securities Laws Upon Purchase of
Securities.
In connection with any offer to purchase or purchase of
Securities under Section 1501, the Company shall (a) comply with Rule 13e-4 and
Rule 14e-1 (or any successor to either such Rule), if applicable, under the
Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise
comply with all federal and state securities laws in connection with such offer
to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 1501 through 1506 to be
exercised in the time and in the manner specified therein.
Section 1506. Repayment to the Company.
To the extent that the aggregate amount of cash or shares of
Common Stock deposited by the Company pursuant to Section 1503 exceeds the
aggregate Optional Repurchase Price together with interest (including Contingent
Interest and Additional Amounts), if any, thereon of the Securities or portions
thereof that the Company is obligated to purchase, then promptly after the
Optional Repurchase Date the Trustee or a Paying Agent, as the case may be,
shall return any such excess to the Company.
Section 1507. Covenants of the Company
All shares of Common Stock delivered upon purchase of the
Securities shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim. The Company shall use
its reasonable efforts to list or cause to have quoted any shares of Common
Stock to be issued to purchase Securities on the principal national securities
exchange or over-the-counter or other domestic market on which the shares of
Common Stock are then listed or quoted.
Section 1508. Procedure upon Repurchase
The Company shall deposit cash (in respect of a cash purchase
or for fractional shares of Common Stock, as applicable) or shares of Common
Stock, or a combination thereof,
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as applicable, at the time and in the manner as provided in Section 1503
sufficient to pay the aggregate Optional Repurchase Price of all Securities to
be purchased on the applicable Optional Repurchase Date pursuant to this Article
Fifteen.
As soon as practicable after the Optional Repurchase Date, the
Company shall deliver to each Holder entitled to receive shares of Common Stock
through the Paying Agent, a certificate for the number of full shares of Common
Stock issuable in payment of the Optional Repurchase Price and cash in lieu of
any fractional shares of Common Stock. The Person in whose name the certificate
for shares of Common Stock is registered shall be treated as a holder of record
of shares of Common Stock on the Business Day next following the Optional
Repurchase Date. Subject to Section 1501, no payment or adjustment will be made
for dividends on the shares of Common Stock the record date for which occurred
on or prior to the Optional Repurchase Date.
Section 1509. Taxes
If a Holder of a Security is paid in shares of Common Stock,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of shares of Common Stock. However, the Holder shall pay any
such tax which is due because the Holder requests the shares of Common Stock to
be issued in a name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the shares of Common Stock being issued in
a name other than the Holder's name until the Paying Agent receives a sum
sufficient to pay any tax which will be due because the shares of Common Stock
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude any income tax withholding required by law or regulations.
ARTICLE SIXTEEN
CONTINGENT INTEREST
Section 1601. Contingent Interest.
The Company shall make Contingent Interest payments to the
Holders of Securities, as set forth in Section 1602 below, during any six month
period from June 15 to December 15 and from December 15 to June 14, beginning
with the six-month period commencing on June 15, 2010 (each a "Contingent
Interest Period") if the average Security Price for the applicable
Five-Trading-Day Measurement Period to, but excluding, the day immediately
preceding the first day of the relevant Contingent Interest Period equals 120%
or more of the Accreted Principal Amount of such Security. During any Contingent
Interest Period when Contingent Interest is payable pursuant to this section,
each Contingent Interest payment due and payable on each $1,000 principal amount
shall equal 0.375% per annum of the average Security Price for the five Trading
Days in the relevant Five-Trading-Day Measurement Period.
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Section 1602. Payment of Contingent Interest; Contingent Interest
Rights Preserved.
If payable, Contingent Interest shall be paid on the last day
of the applicable Contingent Interest Period (in each case, a "Contingent
Interest Payment Date"). Contingent Interest payments on any Security that are
payable, and are punctually paid or duly provided for, on any Contingent
Interest Payment Date shall be paid to the Person who is the Holder of that
Security on the 30th day preceding the last day of such Contingent Interest
Period. Each payment of Contingent Interest on any Security shall be paid (A) if
such Security is held in the form of a Global Note, in the same-day funds by
transfer to an account maintained by the payee located inside the United States,
or (B) if such Security is held in the form of a Certificated Note, by check,
mailed to the address of such Holder as set forth in the Security Register. In
the case of a Global Note, interest payable on any Contingent Interest Payment
Date will be paid to the Depositary for the purpose of permitting Depositary to
credit the interest received by it in respect of such Global Note to the
accounts of the beneficial owners thereof.
Upon determination that Holders of Securities will be entitled
to receive Contingent Interest during a Contingent Interest Period, prior to the
start of such Contingent Interest Period, the Company will issue a press release
and publish such information on its website (or otherwise widely disseminate
such information) as soon as practicable.
Section 1603. Bid Solicitation Agent.
The Company will appoint a Bid Solicitation Agent prior to
June 15, 2010. The Bid Solicitation Agent shall solicit bids from securities
dealers which the Company indicates that it believes are willing to bid for the
Securities. The Company may change the Bid Solicitation Agent at its discretion,
but the Bid Solicitation Agent may not be the Company or an Affiliate of the
Company.
ARTICLE SEVENTEEN
TAX TREATMENT
Section 1701. Tax Treatment.
The Company agrees, and by acceptance of beneficial ownership
interest in the Securities each beneficial holder of the Securities will be
deemed to have agreed, for United States federal income tax purposes (1) to
treat the Securities as indebtedness that is subject to Treas. Reg. Sec.
1.1275-4 (the "Contingent Payment Regulations") and, for purposes of the
Contingent Payment Regulations, to treat the fair market value of any stock
beneficially received by a beneficial holder upon any conversion or repurchase
of the Securities as a contingent payment and (2) to be bound by the Company's
determination of the "comparable yield" and "projected payment schedule," within
the meaning of the Contingent Payment Regulations, with respect to the
Securities. A Holder of Securities may obtain the issue price, amount of
original issue discount, issue date, yield to maturity, comparable yield and
projected payment schedule for the Securities by submitting a written request
for such information to the Company at the
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following address: JAKKS Pacific Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
JAKKS PACIFIC, INC., as Issuer
By:______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Attest: ___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇ FARGO BANK, N.A., as Trustee
By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
107
STATE OF _________________________)
)ss.:
COUNTY OF ________________________)
On the _____ day of June, 2003, before me personally came ▇▇▇▇
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at ______________________________; that he is the Chairman and Chief
Executive Officer of JAKKS Pacific, Inc., which executed the foregoing
instrument; and that he signed his name thereto pursuant to authority of the
Board of Directors of JAKKS Pacific, Inc.
(NOTARIAL
SEAL)
__________________________________
STATE OF _________________________)
)ss.:
COUNTY OF ________________________)
On the _____ day of June, 2003, before me personally came ▇▇▇▇
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at ______________________________; that he is the Assistant Secretary of
JAKKS Pacific, Inc., which executed the foregoing instrument; and that he signed
his name thereto pursuant to authority of the Board of Directors of JAKKS
Pacific, Inc.
(NOTARIAL
SEAL)
__________________________________
STATE OF _________________________)
)ss.:
COUNTY OF ________________________)
On the _____ day of June, 2003, before me personally came
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he resides at __________________________________; that he is an authorized
officer of ▇▇▇▇▇ Fargo Bank, National Association, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that he signed his name thereto pursuant
to like authority.
(NOTARIAL
SEAL)
__________________________________
EXHIBIT A
[Form of Restricted Securities Transfer Certificate]
RESTRICTED SECURITIES TRANSFER CERTIFICATE
(For transfers pursuant to Section 307(a)(ii) of
the Indenture referred to below)
__________________________________,
as Securities Registrar
[ ]
[ ]
Re: Convertible Senior Notes Due 2023 (the "Securities")
Reference is made to the Indenture, dated as of June 9, 2003 (the
"Indenture"), between JAKKS Pacific, Inc., a Delaware corporation and ▇▇▇▇▇
Fargo Bank, National Association, as trustee. Terms used herein and defined in
the Indenture, Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to $_____________ aggregate principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
CURRENTLY IN BOOK-ENTRY FORM: Yes ___ No ___ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through a Depositary (except in the name of "The Depository Trust Company") or
an Agent Member in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States. Accordingly, the Owner hereby further certifies
as:
(1) Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the
meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that
the Owner may be relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or from an affiliate (as such term
is defined in Rule 144) of the Company, whichever is later,
and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144;
(B) the transfer is occurring after a holding period by the Owner
of at least two years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate
(as such term is defined in Rule 144) of the Company,
whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the
Company; or
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: (Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By: __________________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
EXHIBIT B
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 307(b))
__________________________________
__________________________________
__________________________________
Re: Convertible Senior Notes due 2023 of JAKKS Pacific, Inc.
(the "Securities")
Reference is made to the Indenture, dated as of June 9, 2003, between
JAKKS Pacific, Inc., a Delaware corporation (the "Company") and ▇▇▇▇▇ Fargo
Bank, National Association, as Trustee. Terms used herein and defined in the
Indenture or in Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to US$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ____________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Private Placement Legend pursuant to Section 307(b) of the
Indenture. In connection with such exchange, the Owner hereby certifies that the
exchange is occurring after a holding period of at least two years (computed in
accordance with paragraph (d) of Rule 144) has elapsed since the Specified
Securities were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchaser.
Dated: (Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By: __________________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned