EXHIBIT 4.1
$650,000,000
5.25% CONVERTIBLE SUBORDINATED NOTES
DUE SEPTEMBER 15, 2002
Between
RITE AID CORPORATION
as Issuer
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
as Trustee
Dated as of September 10, 1997
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificates and
Opinions; Form of Documents
Delivered to Trustee . . . . . . . . 15
SECTION 1.03. Acts of Holders of Securities . . . 16
SECTION 1.04. Notices, etc. . . . . . . . . . . . 18
SECTION 1.05. Notice to Holders of Securities;
Waiver . . . . . . . . . . . . . . . 18
SECTION 1.06. Effect of Headings and Table
of Contents . . . . . . . . . . . . 19
SECTION 1.07. Successors and Assigns . . . . . . . 19
SECTION 1.08. Separability Clause . . . . . . . . 19
SECTION 1.09. Benefits of Indenture. . . . . . . . 19
SECTION 1.10. Governing Law . . . . . . . . . . . 20
SECTION 1.11. Legal Holidays . . . . . . . . . . . 20
SECTION 1.12. Conflict with Trust Indenture Act. . 20
ARTICLE II
Security Forms
SECTION 2.01 Forms Generally . . . . . . . . . . 21
SECTION 2.02 Form of Face of Security . . . . . . 23
SECTION 2.03 Form of Reverse of Security . . . . 29
SECTION 2.04 Form of Trustee's Certificate
of Authentication. . . . . . . . . . 38
ARTICLE III
The Securities
SECTION 3.01 Title and Terms . . . . . . . . . . 39
SECTION 3.02 Denominations . . . . . . . . . . . 40
SECTION 3.03 Execution, Authentication,
Delivery and Dating . . . . . . . . 40
SECTION 3.04 Temporary Securities . . . . . . . . 41
SECTION 3.05 Registration, Registration of
Transfer and Exchange;
Restrictions on Transfer . . . . . . 42
SECTION 3.06 Mutilated, Destroyed, Lost or
Stolen Securities . . . . . . . . . 49
SECTION 3.07 Payment of Interest, Interest
Rights Preserved . . . . . . . . . . 50
SECTION 3.08 Persons Deemed Owners . . . . . . . 52
SECTION 3.09 Cancelation . . . . . . . . . . . . 52
SECTION 3.10 Computation of Interest . . . . . . 52
SECTION 3.11 CUSIP Numbers . . . . . . . . . . . 52
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . 53
SECTION 4.02 Application of Trust Money . . . . . 54
ARTICLE V
Remedies
SECTION 5.01 Events of Default . . . . . . . . . 55
SECTION 5.02 Acceleration of Maturity;
Rescission and Annulment . . . . . . 58
SECTION 5.03 Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . 59
SECTION 5.04 Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . 60
SECTION 5.05 Trustee May Enforce Claims
Without Possession of Securities . . 61
SECTION 5.06 Application of Money Collected . . . 62
SECTION 5.07 Limitation on Suits . . . . . . . . 62
SECTION 5.08 Unconditional Right of Holders
to Receive Principal and Interest
and to Convert . . . . . . . . . . . 63
SECTION 5.09 Restoration of Rights and
Remedies . . . . . . . . . . . . . . 63
SECTION 5.10 Rights and Remedies Cumulative . . . 64
SECTION 5.11 Delay or Omission Not Waiver . . . . 64
SECTION 5.12 Control by Holders of Securities . . 64
SECTION 5.13 Waiver of Past Defaults . . . . . . 65
SECTION 5.14 Undertaking for Costs . . . . . . . 65
SECTION 5.15 Waiver of Stay or Extension Laws . . 66
ARTICLE VI
The Trustee
SECTION 6.01 Certain Duties and
Responsibilities . . . . . . . . . . 66
SECTION 6.02 Notice of Defaults . . . . . . . . . 67
SECTION 6.03 Certain Rights of Trustee . . . . . 68
SECTION 6.04 Not Responsible for Recitals or
Issuance of Securities . . . . . . . 69
SECTION 6.05 May Hold Securities, Act as
Trustee Under Other Indentures . . . 69
SECTION 6.06 Money Held in Trust . . . . . . . . 70
SECTION 6.07 Compensation and Reimbursement . . . 70
SECTION 6.08 Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 71
SECTION 6.09 Resignation and Removal;
Appointment of Successor . . . . . . 71
SECTION 6.10 Acceptance of Appointment by
Successor . . . . . . . . . . . . . 73
SECTION 6.11 Merger, Conversion, Consolidation
or Succession to Business . . . . . 74
SECTION 6.12 Authenticating Agent . . . . . . . . 74
ARTICLE VII
Holder's Lists and Reports
by Trustee and Company
SECTION 7.01 Company to Furnish Trustee Names
and Addresses of Holders . . . . . . 76
SECTION 7.02 Preservation of Information;
Communications to Holders . . . . . 76
SECTION 7.03 Reports by the Company . . . . . . . 77
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 8.01 Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . 78
SECTION 8.02 Successor Substituted . . . . . . . 79
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures
Without Consent of Holders of
Securities . . . . . . . . . . . . . 80
SECTION 9.02 Supplemental Indentures with
Consent of Holders of Securities . . 81
SECTION 9.03 Execution of Supplemental
Indentures . . . . . . . . . . . . . 82
SECTION 9.04 Effect of Supplemental
Indentures . . . . . . . . . . . . . 82
SECTION 9.05 Reference in Securities to
Supplemental Indentures . . . . . . 82
ARTICLE X
Covenants
SECTION 10.01 Payment of Principal and
Interest . . . . . . . . . . . . . . 83
SECTION 10.02 Maintenance of Offices or
Agencies . . . . . . . . . . . . . . 83
SECTION 10.03 Money for Security Payments
To Be Held in Trust . . . . . . . . 84
SECTION 10.04 Corporate Existence . . . . . . . . 86
SECTION 10.05 Maintenance of Properties . . . . . 86
SECTION 10.06 Compliance with Laws . . . . . . . . 87
SECTION 10.07 Payment of Taxes and Other
Claims . . . . . . . . . . . . . . . 87
SECTION 10.08 Delivery of Certain Information . . 87
SECTION 10.09 Statement by Officers as to
Default . . . . . . . . . . . . . . 88
SECTION 10.10 Resale of Certain Securities . . . . 88
SECTION 10.11 Waiver of Certain Covenants . . . . 89
SECTION 10.12 Registration Rights . . . . . . . . 89
SECTION 10.13 Book-Entry System . . . . . . . . . 89
ARTICLE XI
Redemption of Securities
SECTION 11.01 Right of Redemption . . . . . . . . 90
SECTION 11.02 Applicability of Article . . . . . . 90
SECTION 11.03 Election To Redeem; Notice to
Trustee . . . . . . . . . . . . . . 90
SECTION 11.04 Notice of Redemption . . . . . . . . 90
SECTION 11.05 Deposit of Redemption Price . . . . 91
SECTION 11.06 Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 92
ARTICLE XII
Conversion of Securities
SECTION 12.01 Conversion Privilege and
Conversion Rate . . . . . . . . . . 92
SECTION 12.02 Exercise of Conversion Privilege . . 93
SECTION 12.03 Fractions of Common Stock . . . . . 95
SECTION 12.04 Adjustment of Conversion Rate . . . 96
SECTION 12.05 Notice of Adjustments of
Conversion Rate . . . . . . . . . . 103
SECTION 12.06 Notice of Certain Corporate
Action . . . . . . . . . . . . . . . 103
SECTION 12.07 Company To Reserve Common Stock . . 105
SECTION 12.08 Taxes on Conversions . . . . . . . . 105
SECTION 12.09 Covenant as to Common Stock . . . . 105
SECTION 12.10 Cancelation of Converted
Securities . . . . . . . . . . . . . 105
SECTION 12.11 Provision in Case of
Consolidation, Merger or
Conveyance of Assets . . . . . . . . 105
SECTION 12.12 Responsibility of Trustee for
Conversion Provisions . . . . . . . 107
SECTION 12.13 Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . . 107
ARTICLE XIII
Subordination
SECTION 13.01 Securities Subordinate to
Senior Debt . . . . . . . . . . . . 108
SECTION 13.02 Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . 108
SECTION 13.03 No Payment When Senior Debt in
Default . . . . . . . . . . . . . . 110
SECTION 13.04 Payment Permitted If No Default . . 111
SECTION 13.05 Subrogation to Rights of
Holders of Senior Debt . . . . . . . 111
SECTION 13.06 Provisions Solely To Define
Relative Rights . . . . . . . . . . 112
SECTION 13.07 Trustee To Effectuate
Subordination . . . . . . . . . . . 112
SECTION 13.08 No Waiver of Subordination
Provisions . . . . . . . . . . . . . 112
SECTION 13.09 Notice to Trustee . . . . . . . . . 113
SECTION 13.10 Reliance on Judicial Order or
Certificate of Liquidating Agent . . 114
SECTION 13.11 Trustee Not Fiduciary for Holders
of Senior Debt . . . . . . . . . . . 114
SECTION 13.12 Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . 115
SECTION 13.13 Article Applicable to Paying
Agents . . . . . . . . . . . . . . . 115
SECTION 13.14 Subsidiaries . . . . . . . . . . . . 115
SECTION 13.15 Rescission . . . . . . . . . . . . . 115
SECTION 13.16 Payment . . . . . . . . . . . . . . 115
ARTICLE XIV
Repurchase of Securities at the Option of the
Holder upon a Change in Control
SECTION 14.01 Right to Require Repurchase . . . . 116
SECTION 14.02 Notices; Method of Exercising
Repurchase Right, Etc. . . . . . . . 117
SECTION 14.03 Certain Definitions . . . . . . . . 121
INDENTURE dated as of September 10,
1997, between RITE AID CORPORATION, a
Delaware corporation (herein called the
"Company"), and ▇▇▇▇▇▇ Trust and Savings
Bank, an Illinois banking corporation, as
Trustee hereunder (herein called the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company has duly authorized the
creation of an issue of its 5.25% Convertible Subordinated
Notes due September 15, 2002 (herein called the
"Securities") 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
WHEREAS all things necessary to make 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 to make this Indenture
a valid agreement of the Company in accordance with their
and its terms, have been done.
NOW, THEREFORE, 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 I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions. For all purposes of
this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(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) any reference to an "Article" or a "Section",
or to an "Annex", refers to an Article or Section of,
or an Annex attached to, this Indenture, as the case
may be;
(d) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States prevailing at the time of any relevant
computation hereunder; and
(e) 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; provided, however, that
where such words are used in any form of Security, form
of notice or form of certificate, such words shall
refer only to the particular form of Security, form of
notice or form of certificate, as the case may be, in
which such words are contained.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 1.03.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in
Section 3.05.
"Applicable Procedures" has the meaning specified
in Section 3.05.
"Authenticating Agent" means any Person authorized
by the Trustee pursuant to Section 6.13 to act on behalf of
the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in an
official language of the country of publication or in the
English language, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in the place in
connection with which the term is used or in the financial
community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different
newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Board of Directors", when used with reference to
the Company, means the board of directors of the Company, or
any committee of the board of directors of the Company,
empowered to act for the Company, as the case may be, with
respect to this Indenture.
"Board Resolution" means a resolution duly adopted
by the Board of Directors, a copy of which, certified by the
Secretary or an Assistant Secretary of the Company, as the
case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of
such certification, shall have been delivered to the
Trustee.
"Business Day" means, with respect to any
particular place of payment, place of conversion or any
other place, as the case may be, each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any such day on
which banking institutions in The City of New York, New
York, or in such particular place are authorized or
obligated by law or executive order to close. If any day on
which any delivery, request, surrender, payment or other
action is required or permitted hereunder to be taken by or
on behalf of a Holder is not a Business Day in any place
where such action is required or permitted hereunder to be
taken, then such actions may be taken at such or any other
permitted place on the next succeeding Business Day at such
place with the same force and effect as if taken at the same
time on such day that is not a Business Day at such place.
"CEDEL" means Cedel Bank Societe Anonyme.
"Change in Control" has the meaning specified in
Section 14.03.
"Closing Price Per Share" means, with respect to
the Common Shares of the Company, for any day, the reported
last sales price regular way per share on such day or, in
case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular
way, in either case (a) on the principal (as determined by
the Company's Board of Directors) national securities
exchange on which the Common Shares are listed or admitted
to trading or (b) if not listed or admitted to trading on
any national securities exchange, on the Nasdaq National
Market or (c) if the Common Shares are not listed or
admitted to trading on any national securities exchange or
quoted on such National Market, the average of the closing
bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
"Code" means the United States Internal Revenue
Code of 1986, as amended.
"Commission" means the U.S. Securities and
Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such
Commission is not existing and performing the duties now
assigned to it under applicable law, then the body
performing such duties at such time.
"Common Stock", as applied to the capital stock of
any corporation other than the Company shall mean the
capital stock of any class which has no preference in
respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of such corporation and which is not subject to
redemption by such corporation; and as applied to the
Company shall mean the Common Stock of the Company, par
value $1.00. However, subject to the provisions of
Section 12.12, shares issuable on conversion of Securities
shall include only shares of the class designated as Common
Stock of the Company at the date of execution of this
instrument or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which
have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and
which are not subject to redemption by the Company;
provided, however, that if at any time there shall be more
than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting
from all such reclassifications bears to the total number of
shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"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 President, or
any Vice President, and by any one of its Treasurer, any
Assistant Treasurer, its Secretary or any Assistant
Secretary, and delivered to the Trustee.
"Conversion Agent" means any Person authorized by
the Company to convert Securities in accordance with
Article XII.
"Conversion Price" and "Conversion Rate" have the
meanings specified in Section 12.01 hereof, as adjusted in
accordance with Section 12.04.
"Conversion Securities" means the securities
delivered on conversion of Securities (or any securities
successor thereto), together with any securities successor
thereto to those so delivered on conversions.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered (which at the
date of this Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60603), Attention of Indenture
Trust.
"Corporation" means a corporation, association,
company, joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Depository" means, with respect to the Securities
issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the
Exchange Act, specified for that purpose as contemplated by
Section 2.01 or any successor clearing agency registered
under the Exchange Act as contemplated by Section 2.01.
"Dollar", "$" or "U.S. $" means a dollar or other
equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment
of public and private debts.
"DTC" means The Depository Trust Company.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, including any successor or
amendatory statutes.
"Euroclear" means the Euroclear System.
"Event of Default" has the meaning specified in
Section 5.01.
"Exchange Act" means the U.S. Securities Exchange
Act of 1934 (including any successor act thereto), as it may
be amended from time to time, and (unless the context
otherwise requires) includes the rules and regulations of
the Commission promulgated thereunder.
"Global Security" means any of the Restricted
Global Security and the Regulation S Global Security.
"Holder" means, with respect to any Security, a
Person in whose name such Security is registered in the
Security Register.
"Indebtedness" means (i) all items of indebtedness
or liability (except capital and surplus) which in
accordance with generally accepted accounting principles
would be included in determining total liabilities as shown
on the liability side of a balance sheet as at the date as
of which indebtedness is to be determined, (ii) indebtedness
secured by any Mortgage existing on property owned subject
to such Mortgage, whether or not the indebtedness secured
thereby shall have been assumed, and (iii) guarantees,
endorsements (other than for purposes of collection) and
other contingent obligations in respect of, or to purchase
or otherwise acquire, indebtedness of others, unless the
amount thereof is included in indebtedness under the
preceding clause (i) or (ii); provided, however, that any
obligations or guarantees of obligations in respect of lease
rentals, whether or not such obligations or guarantees of
obligations would be included as liabilities on a
consolidated balance sheet of the Company and its
Subsidiaries, shall not be included in indebtedness.
"Indenture" means this instrument as originally
executed or 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 Annexes attached to this
instrument.
"Interest Payment Date" means the Stated Maturity
of an installment of interest on the Securities.
"Institutional Accredited Investor" means an
institutional accredited investor within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
"Liquidated Damages" has the meaning specified in
Section 2.03.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, exercise of the
repurchase right set forth in Article XV or otherwise.
"Mortgage" means and includes any mortgage,
pledge, lien, security interest, conditional sale or other
title retention agreement or other similar encumbrance.
"Non-Conversion Period" has the meaning specified
in Section 2.03.
"Non-Electing Share" has the meaning specified in
Section 12.11.
"Officer", when used with reference to the
Company, means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial
Officer, the Treasurer, the Controller, an Assistant
Treasurer, an Assistant Controller, the Secretary, an
Assistant Secretary or any Vice President of the Company.
"Officers' Certificate", when used with reference
to the Company, means a written certificate signed by any
one of the Chairman of the Board, the President or any Vice
President of the Company and by any one of the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee provided,
however, that, for purposes of Section 10.09, an "Officers'
Certificate" means a written certificate signed by the
principal executive, financial or accounting officer of the
Company and any one of the other Officers referred to above
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
independent counsel selected by the Company, which counsel
shall be reasonably 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 canceled by the
Trustee or delivered to the Trustee for cancelation;
(b) Securities for the payment or redemption of
which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of
such Securities; provided that if such Securities are
to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to
Section 3.06 or 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 satisfactory to it that
such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of Outstanding Securities
are present at a meeting of Holders of Securities for quorum
purposes or 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 conclusively relying upon any such
determination as to the presence of a quorum or upon any
such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall
be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the 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. In case of a dispute as to such right, any
decision by the Trustee upon the advice of counsel shall be
full protection to the Trustee. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held
by or for the account of any of the above-described persons;
and, subject to Section 6.01, the Trustee shall be entitled
to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the
purposes of any such determination.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
company, partnership, joint venture, association, joint-
stock company, trust, estate, unincorporated organization or
other legal entity or government or any agency or political
subdivision 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 3.06 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.
"Qualified Institutional Buyer" has the meaning
specified in Rule 144A.
"Record Date" means any Regular Record Date or
Special Record Date.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Registration Default" has the meaning specified
in Section 2.03.
"Registration Rights Agreement" has the meaning
specified in Section 10.12.
"Regular Record Date" for interest payable in
respect of any Security on any Interest Payment Date means
the March 1 or September 1 (whether or not a Business Day)
next preceding the relevant Interest Payment Date.
"Regulation S" means Regulation S under the
Securities Act (including any successor regulation thereto),
as it may be amended from time to time.
"Regulation S Global Security" has the meaning
specified in Section 2.01.
"Repurchase Date" has the meaning specified in
Section 14.01.
"Repurchase Price" has the meaning specified in
Section 14.01.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"Restricted Global Security" has the meaning
specified in Section 2.01.
"Restricted Period" has the meaning specified in
Section 2.01.
"Restricted Securities" has the meaning specified
in Section 2.1.
"Rule 144" means Rule 144 under the Securities Act
(including any successor rule thereto), as the same may be
amended from time to time.
"Rule 144A" means Rule 144A under the Securities
Act (including any successor rule thereto), as the same may
be amended from time to time.
"Rule 144A Information" has the meaning specified
in Section 10.08.
"Securities" has the meaning ascribed to it in the
first paragraph of this Indenture.
"Securities Act" means the Securities Act of 1933
(including any successor act thereto), as it may be amended
from time to time, and (unless the context otherwise
requires) includes the rules and regulations of the
Commission promulgated thereunder.
"Securities Payment" has the meaning specified in
Section 13.02.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 3.05.
"Senior Debt" means the principal of (and premium,
if any) and interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on,
and all fees and other amounts (including collection
expenses, attorney's fees and late charges) owing with
respect to, the following, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to
become due, outstanding at the date of execution of the
Indenture or thereafter incurred, created or assumed:
(a) indebtedness of the Company for money borrowed
or evidenced by bonds, debentures, notes or similar
instruments;
(b) reimbursement obligations of the Company with
respect to letters of credit, bankers' acceptances and
similar facilities issued for the account of the
Company;
(c) every obligation of the Company issued or
assumed as the deferred purchase price of property or
services purchased by the Company, excluding any trade
payables and other accrued current liabilities incurred
in the ordinary course of business;
(d) obligations of the Company as lessee under
leases required to be capitalized on the balance sheet
of the lessee under United States generally accepted
accounting principles;
(e) obligations of the Company under interest rate
and currency swaps, caps, floors, collars or similar
arrangements intended to protect the Company against
fluctuations in interest or currency exchange rates;
(f) indebtedness of others of the kinds described
in the preceding clauses (a) through (e) that the
Company has assumed, guaranteed or otherwise assured
the payment thereof, directly or indirectly; and/or
(g) deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to, any
indebtedness or obligation described in the preceding
clauses (a) through (f) whether or not there is any
notice to or consent of the Holders of Notes; provided,
however, that the following shall not constitute Senior
Debt:
(i) any particular indebtedness or
obligation that is owed by the Company to any of
its direct and indirect Subsidiaries and
(ii) any particular indebtedness, deferral,
renewal, extension or refunding if it is expressly
stated in the governing terms or in the assumption
thereof that the indebtedness involved is not
senior in right of payment to the Notes or that
such indebtedness is pari passu with or junior to
the Notes.
"Shelf Registration Statement" has the meaning
specified in Section 2.03.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.07.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of
the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason
of any contingency.
"Trading Days" means (a) if the Common Stock are
listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is
open for business or (b) if the Common Stock are not listed
or admitted for trading on any national securities exchange,
days on which trades may be made on the Nasdaq National
Market or any similar system of automated dissemination of
quotations of securities prices on which the Common Stock
are quoted or (c) if the Common Stock are not listed or
admitted to trading on any national securities exchange or
quoted on such National Market or similar system, days on
which the Common Stock are traded regular way in the over-
the-counter market and for which a closing bid and a closing
asked price for the Common Stock are available.
"Trustee" means the Person named as the "Trustee"
in the preamble 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. If at any time there is more than one
such Person, "Trustee" as used with respect to the
Securities shall mean the Trustee with respect to such
Securities.
"Trust Indenture Act" means the United States
Trust Indenture Act of 1939 (including any successor act
thereto), as it may be amended from time to time, and
(unless the context otherwise requires) includes the rules
and regulations of the Commission thereunder.
"U.S. Depository" means DTC until a successor U.S.
Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S.
Depository" shall mean such successor U.S. Depository.
"Unrestricted Securities" has the meaning
specified in Section 2.01.
"U.S. Government Obligations" means securities
which are (i) direct obligations of the United States of
America for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect
to any such obligation evidenced by such depository receipt
or a specific payment of interest on or principal of any
such obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian
in respect of the obligation set forth in (i) or (ii) above
or the specific payment of interest on or principal of such
obligation evidenced by such depository receipt.
"U.S. Person" means a citizen or resident of the
United States, a domestic partnership, a domestic
corporation or any estate or trust the income of which is
subject to U.S. Federal income taxation regardless of its
source.
"Vice President", when used with respect to the
Company, means any Vice President, whether or not designated
by a number or a word or words added before or after the
title "Vice President".
"Western Europe" means Austria, Belgium, Denmark,
France, Germany, Ireland, Italy, Luxembourg, the
Netherlands, Norway, Portugal, Spain, Sweden, Switzerland
and the United Kingdom.
SECTION 1.02 Compliance Certificates and
Opinions; Form of Documents Delivered to Trustee. (a) Upon
any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any,
provided for in this Indenture 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 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 with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of 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
(iv) a statement as to whether, in the opinion of
each such individual, such condition or covenant has
been complied with.
(b) 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 may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which such certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel
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 stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in
the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
such matters are erroneous.
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 1.03. Acts of Holders of Securities.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders of Securities
may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in
person or by agent or proxy duly appointed in writing.
Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders of Securities
signing such instrument or instruments and so voting at such
meeting. Subject to Section 6.01, the execution of any
instrument by a Holder or his agent, or proxy, may be proved
in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. Proof of execution of any
such instrument or of a writing appointing any such agent or
proxy, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject
to Section 6.01) conclusive in favor of the Trustee and the
Company if made in the manner provided in this Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be
proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proven
by the Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is
made upon such Security.
(e) 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 or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. If the Company does not so fix a
record date in any such case, the Trustee may fix such a
record date by giving written notice to the Company. If
such a record date is fixed, upon 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 the purposes
of determining whether Holders of the requisite proportion
of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be
deemed to be effective unless it shall become effective
pursuant to the provisions of this Indenture not later than
six months after the record date.
SECTION 1.04. Notices, etc. Any request, demand,
authorization, direction, notice, consent, election, waiver
or other Act of Holders of Securities or other document
provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with either of the
following:
(a) the Trustee by any Holder of Securities or by
the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing
to or with the Trustee and received at its Corporate
Trust Office, Attention: Corporate Trust
Administration, or
(b) the Company by the Trustee or by any Holder of
Securities shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided)
if in writing, mailed, first-class postage prepaid,
addressed to the Company at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Notice: Chief Financial Officer or
at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.05. Notice to Holders of Securities;
Waiver. Except as otherwise provided herein, 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, to each Holder affected by such event, at
his registered address as recorded in the Security Register.
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. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Holder
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 give such notice by mail, then such
notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every
purpose hereunder.
SECTION 1.06. 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 1.07. Successors and Assigns. All
covenants and agreements in this Indenture by the Company
shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 1.08. Separability Clause. In case any
provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.09. 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 and assigns hereunder, the holders of
Senior Debt of the Company (solely with respect to
Article XIII) and the Holders of Securities and, solely with
respect to this Article I and Sections 10.08, 12.08 and
12.09, the Holders of Conversion Securities, any benefit or
legal or equitable right, remedy or claim under this
Indenture.
This Article I and Sections 10.08, 12.08 and 12.09
shall not be amended or modified, and neither compliance by
the Company with, nor any default by it under, such Article
or any such Sections, shall be waived, in any manner that
adversely affects the interest of any Holder of a Conversion
Security at the time outstanding without such Holder's
consent.
SECTION 1.10. Governing Law. THIS INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE
UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 1.11. Legal Holidays. In any case where
any Interest Payment Date, Redemption Date, Repurchase Date
or Stated Maturity of any Security or the last day on which
a Holder of a Security has a right to convert his 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 delivery for conversion of such
Security need not be made on or by such day, but may be made
on or by the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date,
Redemption Date, Repurchase Date, or at the Stated Maturity
or by such last day for conversion, as the case may be;
provided, however, that in the case that payment is made on
such succeeding Business Day, no interest shall accrue on
the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repurchase Date,
Stated Maturity or last day for conversion, as the case may
be.
SECTION 1.12. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture (or
would be required to be a part of and govern this Indenture
if this Indenture were required to be qualified under the
Trust Indenture Act), the latter provision 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.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities
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 or Depository
thereof, the Internal Revenue Code of 1986, as amended (the
"Code"), and regulations thereunder, or as may, consistently
herewith, be determined by the Officers executing such
Securities, as evidenced by their execution thereof. The
Company shall approve the form of the Securities and any
notation, legend or endorsement on the Securities.
The definitive Securities shall be printed,
lithographed or engraved or produced by any combination of
these methods on steel engraved borders 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 thereof.
In certain cases described elsewhere herein, the
legends set forth in the first four paragraphs of
Section 2.02 may be omitted from Securities issued
hereunder.
After a transfer of any Securities during the
period of the effectiveness of a Shelf Registration
Statement with respect to the Securities which are included
in such Shelf Registration Statement, all requirements
pertaining to legends on such Security will cease to apply,
the requirements requiring any such Security issued to
certain Holders be issued in global form will cease to
apply, and, except as provided herein, a certificated
Security without legends will be available to the Holder of
such Securities.
Securities offered and sold in their initial
distribution in reliance on Regulation S shall be initially
represented by one or more Regulation S Global Securities
issued in fully registered form without interest coupons,
substantially in the form of Security set forth in
Sections 2.02 and 2.03, with such applicable legends as are
provided for in Section 2.02. Such Regulation S Global
Security shall be registered in the name of the U.S.
Depository or its nominee and deposited with the Trustee, at
its New York office, as custodian for the U.S. Depository,
duly executed by the Company and authenticated by the
Trustee as hereinafter provided, for credit to the
respective accounts at the U.S. Depository of the
depositories for ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear, or CEDEL. Until
such time as the Restricted Period shall have terminated,
Securityholders may hold beneficial interests in such
Regulation S Global Securities only through Euroclear and
CEDEL, unless delivery of such beneficial interest shall be
made through the Restricted Global Note in accordance with
the certification requirements discussed below in Section
3.05(b)(iii). After such time as the Restricted Period
shall have terminated, such certification requirements shall
no longer be required for such transfers. As used herein,
the term "Restricted Period" means the period up to (but not
including) the 40th day following the later of (a) the day
that ▇▇▇▇▇▇▇, Sachs & Co., an initial purchaser of the
Securities, advises the Company and the Trustee of the day
on which the Securities are first offered to persons other
than distributors (as defined in Regulation S) in reliance
on Regulation S and (b) October 20, 1997. The Regulation S
Global Security following the Restricted Period and all
other Securities that are not Restricted Securities shall
collectively be referred to herein as the "Unrestricted
Securities".
Securities offered and sold in their initial
distribution in reliance on Rule 144A shall be issued in the
form of one or more Global Securities (collectively, the
"Restricted Global Security") in fully registered form
without interest coupons, substantially in the form of
Security set forth in Sections 2.02 and 2.03, with such
applicable legends as are provided for in Section 2.02,
except as otherwise permitted herein. Such Global Security
shall be registered in the name of the U.S. Depository or
its nominee and deposited with the Trustee, at its New York
office, as custodian for the U.S. Depository, duly executed
by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the
Restricted Global Security may be increased or decreased
from time to time by adjustments made on the records of the
Trustee, as custodian for the U.S. Depository, in connection
with a corresponding decrease or increase in the aggregate
principal amount of the Regulation S Global Security, as
hereinafter provided. The Restricted Global Security and
all other Securities evidencing the debt, or any portion of
the debt, initially evidenced by such Global Security, other
than Securities transferred or exchanged upon certification
as provided in Section 3.05(b)(ii) or (iv), shall
collectively be referred to herein as the "Restricted
Securities".
The Securities will be issued only in registered
form. The Securities will be issued in minimum
denominations of $1,000, as provided in Section 3.02.
SECTION 2.02. Form of Face of Security.
[INCLUDE IF SECURITY IS A REGULATION S GLOBAL
SECURITY--THIS SECURITY IS A REGULATION S GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 3.05(b) OF
THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN
THIS REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN
INTEREST IN THE RESTRICTED GLOBAL SECURITY DURING THE
RESTRICTED PERIOD.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY--
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON
ITS CONVERSION MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. SECURITIES MAY ONLY BE SOLD IN ACCORDANCE WITH
THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION
AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF RITE AID CORPORATION AND ITS
SUCCESSORS THAT (A) THIS SECURITY AND ANY COMMON STOCK
ISSUABLE UPON ITS CONVERSION MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (III) UNLESS PREVIOUSLY AGREED
WITH THE COMPANY, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN EACH
OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE
UNITED STATES, AND THAT (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE
UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTION ON ANY PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT
ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THERETO) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED
BY THE ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO
HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
CONVERSION OF THIS SECURITY IS SUBJECT TO
CERTIFICATION AND OTHER REQUIREMENTS, AND ANY SECURITIES
ISSUED ON SUCH CONVERSION WILL BE SUBJECT TO THE TRANSFER
RESTRICTIONS REFERRED TO ABOVE.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY--THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY AND THE
DEPOSITORY TRUST COMPANY IS THE U.S. DEPOSITORY--UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE &
CO. (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 THEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
RITE AID CORPORATION
5.25% CONVERTIBLE SUBORDINATED NOTES
DUE SEPTEMBER 15, 2002
No. $
CUSIP No.:
RITE AID CORPORATION, a Delaware corporation
(herein called the "Company", which term includes any
successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
to Cede & Co., or registered assigns, the principal sum of
U.S. Dollars, or such other amount (not to
exceed six hundred and fifty million dollars ($650,000,000)
when taken together with all of the Company's 5.25%
Convertible Subordinated Notes due September 15, 2002 issued
and outstanding in definitive certificated form or in the
form of another Global Security) as may from time to time
represent the principal amount of the Company's 5.25%
Convertible Subordinated Notes due September 15, 2002 in
respect of which beneficial interests are held through the
U.S. Depositary in the form of a [Restricted] [Regulation S]
Global Security, on September 15, 2002 and to pay interest
thereon from September 10, 1997 or from the most recent
Interest Payment Date (as defined below) to which interest
has been paid or duly provided for, semiannually in arrears
on March 15 and September 15 in each year, commencing on
March 15, 1998, and at Maturity at the rate of 5.25% per
annum, until the principal hereof is paid or made available
for payment; provided that any amount of such principal or
interest that is overdue shall bear interest at the rate of
5.25% per annum (to the extent that payment of such interest
shall be legally enforceable), from the date such amount is
due until it is paid or made available for payment, and such
interest on any overdue amount shall be payable on demand.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided
in such 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, which shall be the March 1 or
September 1 (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 will
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 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,
if such manner shall be deemed practical by the Trustee, and
upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of and interest on this
Security will be made in immediately available funds and 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, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The
City of New York, or, at the option of the Holder and
subject to any fiscal or other laws and regulations, at any
other office or agency maintained by the Company for such
purpose; provided, however, that upon written application
(including wire payment instructions) by the Holder to the
Security Registrar not later than the 10th day immediately
preceding the relevant Regular Record Date, such Holder may
receive payment by wire transfer to a U.S. Dollar account
(such transfers to be made only to Holders of an aggregate
principal amount in excess of U.S. $2,000,000) maintained by
the payee with a bank in The City of New York; and provided
further that, subject to the preceding proviso, payment of
interest may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; and provided
further that payment of principal of, or interest on this
Security and payment of any Liquidated Damages (as defined
on the reverse hereof) may be made at an office or agency of
the Corporate Trust Office of the Trustee in The City of
New York, if (but only if) payment of the full amount of
such principal, interest or Liquidated Damages, as the case
may be, at all offices outside the United States maintained
for such purpose by the Company in accordance with the
Indenture is illegal or effectively precluded because of
exchange controls or other similar restrictions on the full
payment or receipt of such amounts in United States Dollars,
as determined by the Company. Unless such designation is
revoked, any such designation made by the Holder with
respect to this Security will remain in effect with respect
to future payments with respect to this Security payable to
the Holder. The Company will pay any administrative costs
imposed by banks in connection with making any such payments
upon application of such Holder for reimbursement. If this
Security is a Global Security, then, notwithstanding the
second sentence of this paragraph, each such payment will be
made in accordance with the procedures of the U.S.
Depository as then in effect.
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.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse
hereof by the manual signature of one of its authorized
signatories, 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
Security to be duly executed under its corporate seal.
RITE AID CORPORATION,
[Corporate Seal] by
__________________________
Title:
Attest:
______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: ▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee,
By
________________________
Authorized Signatory
SECTION 2.03. Form of Reverse of Security. This
Security is one of a duly authorized issue of securities of
the Company designated as its "5.25% Convertible
Subordinated Notes due September 15, 2002" (herein called
the "Securities"), limited in aggregate principal amount to
$650,000,000, issued and to be issued under an Indenture,
dated as of September 10, 1997 (herein called the
("Indenture") between the Company and ▇▇▇▇▇▇ Trust and
Savings Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the Holders of
Senior Debt of the Company and the Holders of the Securities
and of the terms upon which the Securities are, and are to
be, authenticated and delivered.
No sinking fund is provided for in the Securities.
The Securities may not be redeemed at the option of the
Company prior to September 15, 2000. Thereafter, the
Securities may be redeemed at the option of the Company, in
whole or in part, at the Redemption Prices set forth below.
The Redemption Prices (expressed as a percentage
of principal amount) are as follows for the 12-month period
beginning on September 15 of the following years:
Redemption
Year Price
2000 102.10%
2001 101.05%
and thereafter at a Redemption Price equal to 100% of the
principal amount, in each case together with accrued
interest to the Redemption Date.
Notice of redemption (which notice shall be
irrevocable) will be given by first-class mail to Holders of
Securities at their registered addresses as recorded in the
Security Register. Notice will be given not more than 60
nor less than 30 days prior to the Redemption Date, as
provided in the Indenture.
In any case where the due date for the payment of
the principal of or interest, including Liquidated Damages,
on any Security or the last day on which a Holder of a
Security has a right to convert his Security shall be at any
place of payment or place of conversion, as the case may be,
a day on which banking institutions at such place of payment
or place of conversion are authorized or obligated by law or
executive order to close, then payment of principal or
interest, including Liquidated Damages, or delivery for
conversion of such Security need not be made on or by such
date at such place but may be made on or by the next
succeeding day at such place which is not a day on which
banking institutions are authorized or obligated by law or
executive order to close, with the same force and effect as
if made on the date for such payment or the date fixed for
redemption or repurchase, or at the Stated Maturity or by
such last day for conversion, and no interest shall accrue
for the period after such date.
Subject to and upon compliance with the provisions
of the Indenture, the Holder of this Security is entitled,
at his option, at any time on or after December 9, 1997 (the
"Non-Conversion Period") and prior to the close of business
on September 15, 2002, or in case this Security is called
for redemption or the Holder hereof has exercised its right
to require the Company to repurchase this Security, then in
respect of this Security until and including, but (unless
the Company defaults in making the payment due upon
redemption or repurchase, as the case may be) not after, the
close of business on the Redemption Date or the Repurchase
Date, as the case may be, to convert this Security into
validly issued fully paid and nonassessable Common Stock of
the Company at an initial Conversion Rate equal to 13.836
shares of Common Stock per $1,000 principal amount of
Securities (or at the current adjusted Conversion Rate if an
adjustment has been made as provided in the Indenture) by
surrender of this Security, and also a duly executed
conversion notice, substantially in the form provided in
Annex A of the Indenture (including the tax certification
contained in such notice), to the Company, subject to any
laws or regulations applicable thereto and subject to the
right of the Company to terminate the appointment of the
Conversion Agent (as defined below), at the principal
corporate trust office of the Trustee in The City of
New York or at such other offices or agencies outside the
United States that the Company may designate (each a
"Conversion Agent"). No payment or adjustment is to be made
on conversion for cash dividends on the Common Stock issued
on conversion or, if the date of conversion is not an
Interest Payment Date, interest accrued hereon from the
Interest Payment Date next preceding the date of conversion.
No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any
fractional interest (calculated to the nearest 1/100th of a
share) the Company shall pay a cash adjustment as provided
in the Indenture, or alternatively, at the Company's option,
the Company shall round up the conversion transaction to the
next higher whole share. In addition, the Indenture
provides that in case of certain consolidations or mergers
to which the Company is a party or the sale or transfer of
all or substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any
Holders of Securities, so that this Security, if then
Outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and
other property receivable upon consolidation, merger, sale
or transfer by a holder of the number of Common Stock of the
Company into which this Security might have been converted
immediately prior to such consolidation, merger, sale or
transfer (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the
kind and amount received per share by a plurality of
Non-Electing Shares). Adjustments in the Conversion Rate
of less than one percent of such price will not be required,
but any adjustment that would otherwise be required to be
made will be carried forward and taken into account in the
computation of any subsequent adjustment.
Notwithstanding any provision hereof, no
securities will be delivered on conversion of this Security
or any portion hereof unless the certification and other
requirements described in the Indenture are satisfied.
Subject to certain limitations in the Indenture,
at any time when the Company is not subject to Section 13
or 15(d) of the United States Securities Exchange Act of
1934, as amended, upon the request of a Holder of a
Restricted Security or the holder of Common Stock issued
upon conversion thereof, the Company will promptly furnish
or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities or such
holder of Common Stock issued upon conversion of Restricted
Securities, or to a prospective purchaser of any such
security designated by any such Holder or holder, as the
case may be, to the extent required to permit compliance by
any such holder with Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"). "Rule 144A
Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).
The Holder of this Security and the Common Stock
of the Company issuable upon conversion thereof is entitled
to the benefits of a Registration Rights Agreement (subject
to the provisions thereof), dated as of September 4, 1997,
between the Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, Bear ▇▇▇▇▇▇▇ & Co. Inc. and
Salomon Brothers Inc (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company
has agreed for the benefit of the Holders from time to time
of the Securities and the Common Stock issuable upon
conversion thereof that it will, at its expense, (a) within
90 days after the date of issuance of the original
Securities, file a shelf registration statement (the "Shelf
Registration Statement") with the Commission with respect to
resales of the Securities and the Common Stock issuable upon
conversion thereof, (b) use its best efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission within 180 days after the date of original
issuance of the Securities, and (c) use its best efforts to
maintain such Shelf Registration Statement continuously
effective under the Securities Act, until the second
anniversary of the date of the effectiveness of the Shelf
Registration Statement or such earlier date as is provided
in the Registration Rights Agreement.
If (a) on or prior to 90 days following the date
of original issuance of the Securities, a Shelf Registration
Statement has not been filed with the Commission, or (b) on
or prior to the 180th day following the date of original
issuance of the Securities, such Shelf Registration
Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will
accrue on this Security from and including the day following
such Registration Default to but excluding the day on which
such Registration Default has been cured. Liquidated
Damages will be paid semiannually in arrears, with the first
semiannual payment due on the first interest payment date in
respect of the Securities following the date on which such
Liquidated Damages begin to accrue, and will accrue at a
rate per annum equal to an additional one-quarter of one
percent (0.25%) of the principal amount of the Securities
outstanding to and including the 90th day following such
Registration Default and at a rate per annum equal to one-
half of one percent (0.50%) thereof from and after the 91st
day following such Registration Default. In the event that
the Shelf Registration Statement ceases to be effective
prior to the second annual anniversary of the initial
effective date of the Shelf Registration Statement or such
earlier date as is provided in the Registration Rights
Agreement for a period in excess of 60 days, whether or not
consecutive, during any 12-month period, then the interest
rate borne by the Securities shall increase by an additional
one-half of one percent (0.50%) per annum from the 61st day
of the applicable 12-month period such Shelf Registration
Statement ceases to be effective to but excluding the day on
which the Shelf Registration Statement again becomes
effective.
Whenever in this Security there is a reference, in
any context, to the payment of the principal of, premium, if
any, or interest on, or in respect of, any Security such
mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in the preceding
paragraph to the extent that, in such context, Liquidated
Damages are, were or would be payable in respect of such
Security and express mention of the payment of Liquidated
Damages (if applicable) in any provisions of this Security
shall not be construed as excluding Liquidated Damages in
those provisions of this Security where such express mention
is not made.
The Holder of this Security, by its acceptance
thereof, agrees to be bound by the terms of the Registration
Rights Agreement relating to the Securities and the Common
Stock issuable upon conversion thereof.
If a Change in Control occurs, the Holder of this
Security shall have the right, at the Holder's option in
accordance with the provisions of the Indenture, to require
the Company to repurchase this Security (or any portion of
the principal amount hereof that is an integral multiple of
$1,000) for cash at a Repurchase Price equal to 100% of the
principal amount thereof plus interest accrued to the
Repurchase Date. At the option of the Company, the
Repurchase Price may be paid in cash or, except as otherwise
provided in the Indenture, by delivery of Common Stock
having a fair market value equal to the Repurchase Price;
provided that payment may not be made in Common Stock unless
at the time of payment such stock is listed on a national
securities exchange or quoted on the Nasdaq National Market.
For purposes of this paragraph, the fair market value of
shares of Common Stock shall be determined by the Company
and shall be equal to 95% of the average of the Closing
Prices Per Share for the five consecutive Trading Days
ending on and including the third Trading Day immediately
preceding the Repurchase Date. Whenever in this Security
there is a reference, in any context, to the principal of
any Security as of any time, such reference shall be deemed
to include reference to the Repurchase Price payable in
respect of such Security to the extent that such Repurchase
Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of
this Security shall not be construed as excluding the
Repurchase Price in those provisions of this Security when
such express mention is not made.
The indebtedness evidenced by this Security is, to
the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior
payment in full of all amounts then or thereafter to become
due on all Senior Debt of the Company, and this Security is
issued subject to such provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its
behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and
(c) appoints the Trustee its attorney-in-fact for any and
all such purposes.
If an Event of Default shall occur and be
continuing, the principal of all the Securities may be
declared due and payable to the extent, in the manner and
with the effect provided in the Indenture. Upon payment
(i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue
interest, all of the Company's obligations in respect of the
payment of the principal of and interest on the Securities
shall terminate.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights
of the Holders of the Securities under the Indenture at any
time by the Company and the Trustee with the written consent
of the Holders of a majority in principal amount of the
Securities at the time outstanding. The Indenture also
contains provisions permitting the Holders of specified
percentages in principal amount 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 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 in exchange herefor
or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a
continuing Event of Default, the Holders of not less than
25% in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default
and offered the Trustee indemnity satisfactory to it and the
Trustee shall not have received from the Holders of a
majority in principal amount of the Securities Outstanding a
direction inconsistent with such request and shall have
failed to institute any such proceedings for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment
of principal hereof or interest hereon (including any
Liquidated Damages) on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter
or impair the obligations of the Company, which are absolute
and unconditional, to pay the principal of and interest
(including Liquidated Damages) on this Security at the
times, places and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the
Indenture.
The Securities are issuable only in fully
registered form, without exception, and, except as provided
in Section 2.01 of the Indenture, in denominations of $1,000
and any integral multiples of $1,000 in excess thereof. As
provided in the Indenture and subject to certain limitations
and satisfaction of certain requirements therein set forth,
Securities are exchangeable for a like aggregate principal
amount of securities of the same or a different authorized
denomination, as requested by the Holder surrendering the
same.
As provided in the Indenture and subject to
certain limitations and satisfaction of certain requirements
therein set forth, the transfer of this Security is
registrable on the Security Register upon surrender of this
Security for registration of transfer at the office or
agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York,
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
his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to recover any tax or
other governmental charge payable in connection therewith.
Prior to due presentation 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 such Security is registered, as the owner thereof
for all purposes, whether or not such Security be overdue,
and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, THE UNITED STATES OF AMERICA.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in
the Indenture.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.01 of the Indenture,
the undersigned hereby elects to have this Security
repurchased by the Company.
2. The undersigned hereby directs the Trustee or
the Company to pay it or
an amount in cash or, at
the Company's election, Common Stock valued as set forth in
the Indenture, equal to 100% of the principal amount hereof,
plus interest accrued to the Repurchase Date, as provided in
the Indenture.
Dated:
___________________________
Signature
___________________________
Signature Guaranteed
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in the Securities Transfer Agents Medallion
Program (STAMP), the Stock Exchange Medallion Program (SEMP)
and the New York Stock Exchange Medallion Signature Program
(MSP) or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution
for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Principal amount to be repurchased:
Remaining principal amount following such repurchase:
NOTICE: The signature to the foregoing Election must
correspond to the Name as written upon the face of this
Security in every particular, without alteration or any
change whatsoever.
SECTION 2.04. Form of Trustee's Certificate of
Authentication. This is one of the Securities referred to
in the within-mentioned Indenture.
Dated: ▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee,
by
_________________________
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate
principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to
$650,000,000 except for Securities authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to
Sections 3.04, 3.05, 3.06, 9.05, or 12.02.
The Securities shall be known and designated as
the "5.25% Convertible Subordinated Notes due September 15,
2002" of the Company. Their Stated Maturity shall be
September 15, 2002 and they shall bear interest at the rate
of 5.25% per annum from September 10, 1997 or from the most
recent Interest Payment Date to which interest has been paid
or duly provided for, as the case may be, payable
semiannually in arrears on March 15 and September 15 of each
year, commencing March 15, 1998, and at Maturity, until the
principal thereof is paid or made available for payment;
provided that any amount of such principal or interest that
is overdue shall bear interest at the rate of 5.25% per
annum (to the extent that payment of such interest shall be
legally enforceable), from the date such amount is due until
it is paid or made available for payment, and such interest
on any overdue amount shall be payable on demand.
The principal of and interest on the Securities
shall be payable in immediately available funds and 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, at the Corporate Trust Office of the Trustee
in the Borough of Manhattan, The City of New York or, at the
option of the Holder and subject to any fiscal or other laws
and regulations applicable thereto, at any other office of
the Trustee or any Paying Agent outside The City of New
York; provided, however, that upon application (including
wire payment instructions) by the Holder to the Trustee not
later than the relevant Regular Record Date, such Holder may
receive payment by wire transfer to a U.S. Dollar account
(such transfers to be made only to Holders of an aggregate
principal amount in excess of U.S. $2,000,000) maintained by
the payee with a bank in The City of New York, New York; and
provided further that subject to the preceding proviso,
payment of interest may, at the option of the Company, be
made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security
Register. Unless such designation is revoked, any such
designation made by such Holder with respect to such
Security will remain in effect with respect to any future
payments with respect to such Security payable to such
Holder. The Company will pay any administrative costs
imposed by banks in connection with making such payments,
upon application by the relevant Holder. Notwithstanding
the second sentence of this paragraph, each payment of
principal and interest in respect of a Global Security will
be made in accordance with the procedures of the U.S.
Depository as then in effect.
The Securities shall be redeemable at the
Company's option, in whole or in part, under the
circumstances and at the Redemption Prices specified in the
form of Securities set forth in Sections 2.02 and 2.03.
The Securities shall be convertible as provided in
Article XII.
The Securities shall be subordinated in right of
payment to Senior Debt of the Company as provided in
Article XIII.
The Securities shall be subject to repurchase by
the Company at the option of the Holders as provided in
Article XIV.
SECTION 3.02. Denominations. The Securities
shall be issuable only in registered form without coupons
and, except as provided in Section 2.01, only in
denominations of $1,000 and any integral multiple of $1,000
in excess thereof.
SECTION 3.03. Execution, Authentication, Delivery
and Dating. The Securities shall be executed on behalf of
the Company by any one of its Chairman of the Board, its
Chief Executive Officer, its President, or any one of its
Vice Presidents, under a facsimile of its corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. Any such signature may be manual or
facsimile.
Securities bearing the manual or facsimile
signature of individuals who were at any time the proper
Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at
the 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 make available for delivery such Securities
as in this Indenture provided and not otherwise. In
connection with any Company Order for authentication, a
compliance certificate and Opinion of Counsel pursuant to
Section 1.02 shall not be required.
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
executed by the Trustee or the Authenticating Agent by
manual signature of an authorized signatory, and such
certificate upon such Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold or delivered
by the Company, and the Company shall deliver such Security
to the Trustee for cancelation as provided in Section 3.09,
for all purposes of this Indenture and such Security shall
be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of
this Indenture.
SECTION 3.04. Temporary Securities. Pending the
preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten,
mimeographed 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 evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable
for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated
pursuant to Section 10.2, without charge to the Holder.
Upon surrender for cancelation of any one or more temporary
Securities the Company shall execute and the Trustee shall
authenticate and make available for delivery 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 3.05. Registration, Registration of
Transfer and Exchange; Restrictions on Transfer. (a) The
Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant
to Section 10.02 being herein sometimes collectively
referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed
"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 an office or agency of the Company designated pursuant to
Section 10.02 for such purpose, and subject to the other
provisions of this Section 3.05, the Company shall execute,
and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or
transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the
other provisions of this Section 3.05, Securities may be
exchanged for other Securities of any authorized
denominations and 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, and subject to the other provisions of this
Section 3.05, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
subject to the other provisions of this Section 3.05,
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 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 for any
registration of transfer or exchange of securities, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04,
12.02 or 14.02(f) not involving any transfer and subject to
Section 12.09.
(b) Notwithstanding any other provisions of this
Indenture or the Securities (but subject to Section 2.01),
transfers of a Global Security, in whole or in part,
transfers and exchanges of interests therein of the kinds
described in clauses (2), (3), (4) and (5) below and
exchanges of interests in Global Securities, and transfers
or exchanges of other Securities as described in clause (6)
below, shall be made only in accordance with this
Section 3.05(b). Transfers and exchanges subject to this
Section 3.05 shall also be subject to the other provisions
of this Indenture that are not inconsistent with this
Section 3.05.
(i) Limitation on Transfers of a Global Security.
A Global Security may not be transferred, in whole or
in part, to any Person other than the U.S. Depository
or a nominee thereof, and no such transfer to any such
other Person may be registered; provided that this
clause (1) shall not prohibit any transfer of a
Security that is issued in exchange for a Global
Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective
under this Indenture or the Securities unless and until
such Security has been registered in the name of such
Person. Nothing in this Section 3.05(b)(ii) shall
prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in
accordance with the other provisions of this
Section 3.05(b).
(ii) Restricted Global Security to Regulation S
Global Security. If the holder of a beneficial
interest in the Restricted Global Security wishes at
any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a
beneficial interest in the Regulation S Global
Security, such transfer may be effected, subject to the
rules and procedures of the U.S. Depository, Euroclear
and CEDEL, in each case to the extent applicable (the
"Applicable Procedures"), only in accordance with this
Section 3.05(b)(ii). Upon receipt by the Trustee, as
Security Registrar, at its office in The City of
New York of (A) written instructions given in
accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a
beneficial interest in the Regulation S Global Security
in a principal amount equal to that of the beneficial
interest in the Restricted Global Security to be so
transferred, (B) a written order given in accordance
with the Applicable Procedures containing information
regarding the account of the Agent Member (and, if
applicable, the Euroclear or CEDEL account, as the case
may be) to be credited with, and the account of the
Agent Member to be debited for, such beneficial
interest and (C) a certificate in substantially the
form set forth in Annex B given by the holder of such
beneficial interest, the Trustee, as Security
Registrar, shall instruct the U.S. Depository to reduce
the principal amount of the Restricted Global Security,
and to increase the principal amount of the Regulation
S Global Security, by the principal amount of the
beneficial interest in the Restricted Global Security
to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such
instructions (which during the Restricted Period shall
be the Agent Member for Euroclear or CEDEL or both, as
the case may be) a beneficial interest in the
Regulation S Global Security having a principal amount
equal to the amount by which the principal amount of
the Restricted Global Security was reduced upon such
transfer.
(iii) Regulation S Global Security to Restricted
Global Security. If during the Restricted Period the
holder of a beneficial interest in the Regulation S
Global Security wishes to transfer such interest to a
Person who wishes to take delivery thereof in the form
of a beneficial interest in the Restricted Global
Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this
Section 3.05(b)(iii). Upon receipt by the Trustee, as
Security Registrar, at its office in The City of
New York of (A) written instructions given in
accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Security
in a principal amount equal to that of the beneficial
interest in the Regulation S Global Security to be so
transferred, (B) a written order given in accordance
with the Applicable Procedures containing information
regarding the account of the Agent Member to be
credited with, and the account of the Agent Member
(and, if applicable, the Euroclear or CEDEL account, as
the case may be) to be debited for, such beneficial
interest and (C) a certificate in substantially the
form set forth in Annex C given by the holder of such
beneficial interest, the Trustee, as Security
Registrar, shall instruct the U.S. Depository to reduce
the principal amount of the Regulation S Global
Security and to increase the principal amount of the
Restricted Global Security, by the principal amount of
the beneficial interest in the Regulation S Global
Security to be so transferred, and to credit or cause
to be credited to the account of the Person specified
in such instructions a beneficial interest in the
Restricted Global Security having a principal amount
equal to the amount by which the principal amount of
the Regulation S Global Security, as the case may be,
was reduced upon such transfer.
(iv) Exchanges. In the event that a Restricted
Global Security or any portion thereof is exchanged for
a Regulation S Global Security or Securities other than
Global Securities, such other Securities may in turn be
exchanged (on transfer or otherwise) for Securities
that are not Global Securities or for beneficial
interests in a Global Security (if any is then
outstanding) only in accordance with such procedures,
which shall be substantially consistent with the
provisions of clauses (i) through (iii) above and (v)
below (including the certification requirements
intended to insure that transfers and exchanges of
beneficial interests in a Global Security comply with
Rule 144A, Rule 144 or Regulation S, as the case may
be) and any Applicable Procedures, as may be from time
to time adopted by the Company and the Trustee.
(v) Interests in Regulation S Global Security To
Be Held Through Euroclear or CEDEL. Until the
termination of the Restricted Period, interests in the
Regulation S Global Security may be held only through
Agent Members acting for and on behalf of Euroclear and
CEDEL provided that this Clause (v) shall not prohibit
any transfer in accordance with Section 3.05(b)(iii)
hereof.
(c) Each Restricted Security and Global Security
issued hereunder shall, upon issuance, bear the legends
required by Section 2.02 to be applied to such a Security
and such required legends shall not be removed from such
Security except as provided in the next sentence or
paragraph (d) of this Section 3.05. The legend required for
a Restricted Security may be removed from such Security upon
the earlier of (i) the later of the expiration of two years
from the last date of original issuance of the Securities
and the last date on which the Company or any affiliate of
the Company reacquired such Securities, if any, and (ii) the
date such Security is resold pursuant to an effective
Registration Statement relating thereto. Upon provision of
such satisfactory evidence, the Trustee, at the written
direction of the Company, shall authenticate and deliver in
exchange for such Security another Security or Securities
having an equal aggregate principal amount that does not
bear such legend. If such a legend required for a
Restricted Security has been removed from a Security as
provided above, no other Security issued in exchange for all
or any part of such Security shall bear such legend, unless
the Company has reasonable cause to believe that such other
Security is a "restricted security" within the meaning of
Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
(d) The provisions of clauses (i), (ii), (iii)
and (iv) below shall apply only to Global Securities:
(i) Each Global Security authenticated under this
Indenture shall be registered in the name of the U.S.
Depository or a nominee thereof and delivered to such
U.S. Depository or a nominee thereof or custodian
therefor, and each such Global Security shall
constitute a single Security for all purposes of this
Indenture.
(ii) Notwithstanding any other provision in this
Indenture or the Securities, no Global Security may be
exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any
Person other than the U.S. Depository or a nominee
thereof unless (A) the U.S. Depository (1) has notified
the Company that it is unwilling or unable to continue
as U.S. Depository for such Global Security or (2) has
ceased to be a clearing agency registered under the
Exchange Act, (B) in the case of a Global Security held
for an account of Euroclear or CEDEL, Euroclear or
CEDEL, as the case may be, (1) is closed for business
for a continuous period of 14 days (other than by
reason of statutory or other holidays) or (2) announces
an intention permanently to cease business or does in
fact do so, (C) there shall have occurred and be
continuing an Event of Default with respect to such
Global Security or (D) a request for certificates has
been made upon 60 days' prior written notice given to
the Trustee in accordance with the U.S. Depository's
customary procedures and a copy of such notice has been
received by the Company from the Trustee. Any Global
Security exchanged pursuant to clause (A) or (B) above
shall be so exchanged in whole and not in part and any
Global Security exchanged pursuant to clause (C) or (D)
above may be exchanged in whole or from time to time in
part as directed by the U.S. Depository. Any Security
issued in exchange for a Global Security or any portion
thereof shall be a Global Security, provided that any
such Security so issued that is registered in the name
of a Person other than the U.S. Depository or a nominee
thereof shall not be a Global Security.
(iii) Securities issued in exchange for a Global
Security or any portion thereof pursuant to clause (ii)
above shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security
or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized
denominations as the U.S. Depository shall designate
and shall bear any legends required hereunder. Any
Global Security to be exchanged in whole shall be
surrendered by the U.S. Depository to the Trustee, as
Security Registrar. With regard to any Global Security
to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee
is acting as custodian for the U.S. Depository or its
nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by
means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and make available for
delivery the Security issuable on such exchange to or
upon the written order of the U.S. Depository or an
authorized representative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will
promptly make available to the Trustee a reasonable
supply of certificated Securities in definitive, fully
registered form, without interest coupons.
(v) Neither any members of, or participants in,
the U.S. Depository ("Agent Members") nor any other
Persons on whose behalf Agent Members may act
(including Euroclear and CEDEL and account holders and
participants therein) shall have any rights under this
Indenture with respect to any Global Security, or under
any Global Security, and the U.S. Depository or such
nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder 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 U.S. Depository or such nominee, as
the case may be, or impair, as between the U.S.
Depository, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the
exercise of the rights of a holder of any Security.
SECTION 3.06. Mutilated, Destroyed, Lost or
Stolen Securities. If there shall be delivered to the
Company and the Trustee (i) (A) any mutilated Security or
(B) evidence to their satisfaction of the destruction, loss
or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for such mutilated Security, a new
Security of like tenor and principal amount and 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 new Security, pay such Security.
A Holder shall bear the cost to the Company of
replacing a mutilated, destroyed, stolen or lost Security.
Upon the issuance of any new Security under this Section,
the Company also may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the 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 3.07. 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 (or one or more Predecessor Securities)
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 (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor 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 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 Clause 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 of such Special Record Date
and, in the name and at the expense of the Company,
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 of Securities at such Holder's 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 (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no
longer be payable pursuant to the following clause (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
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section and Section 3.05, 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.
Any Security surrendered for conversion during the
period from the close of business on any Regular Record Date
to the opening of business on the next succeeding Interest
Payment Date (except Securities called for redemption on a
Redemption Date or to be repurchased on a Repurchase Date
and, as a result, the right to convert such Securities with
respect to which the Holder has exercised redemption or
repurchase rights would terminate during such period) must
be accompanied by payment in New York Clearing House Funds
or other funds acceptable to the Company of an amount equal
to the Interest payable on such Interest Payment Date on the
principal amount of such Securities being surrendered for
conversion. In the case of any Security which is converted
after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date) whose
Stated Maturity is on such Interest Payment Date, interest
shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether
or not punctually paid or duly provided for) shall be paid
to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in
the case of any Security which is converted, interest whose
Stated Maturity is after the date of conversion of such
Security shall not be payable.
SECTION 3.08. Persons Deemed Owners. Prior to
due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name such Security
is registered as the owner of such Security for the purpose
of receiving payment of principal of and (subject to
Sections 3.05 and 3.07) interest on such Security and for
all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.09. Cancelation. All Securities
surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities so delivered shall
be canceled promptly by the Trustee. The Company may at any
time deliver to the Trustee for cancelation any Securities
previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancelation any Securities
previously authenticated hereunder which the Company has not
issued and sold or delivered, and all Securities so
delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section
3.09, except as expressly permitted by this Indenture. The
Trustee shall destroy canceled Securities and deliver a
certificate of such destruction to the Company.
SECTION 3.10. Computation of Interest. Interest
on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.11. CUSIP Numbers. The Company in
issuing the Securities may use "CUSIP" and "CINS" numbers
(if then generally in use), and the Trustee shall use CUSIP
numbers or CINS numbers, as the case may be, in notices of
redemption, repurchase or exchange as a convenience to the
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 redemption, repurchase or exchange and that
reliance may be placed only on the other identification
numbers printed on the Securities.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of
Indenture. This Indenture shall upon Company Request cease
to be of further effect (except as to any surviving rights
of conversion, or replacement of Securities herein expressly
provided for, any right to receive the payment of principal
of, or interest on, such Securities or Liquidated Damages
under the tenth paragraph on the reverse of the form of
Securities set forth in Section 2.03 and the rights,
obligations and immunities of the Trustee hereunder), and
the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge
of this Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than (A) Securities which
have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06
and (B) Securities for whose payment money has
theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter
repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been
delivered to the Trustee for cancelation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancelation
(A) have become due and payable, or
(B) will have become due and payable at
their Stated Maturity within one year, or
(C) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company;
and the Company, in the case of (A), (B) or (C) above,
has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose
(1) money in an amount, or (2) U.S. Government
Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance
with their terms will provide, not later than one day
before the due date of any payment, money in an amount,
or (3) a combination thereof, sufficient to pay and
discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for
cancelation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with, and that any consents required
under any document evidencing and/or securing Senior Debt
have been obtained and are in full force and effect.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the
Trustee under Section 6.07 shall survive. Funds held in
trust pursuant to this Section are not subject to the
provisions of Article XIII.
SECTION 4.02. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of
Section 10.03, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, 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 and interest for whose payment such money
has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to
Section 4.01 (and held by it or any Paying Agent) for the
payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited
pursuant to Section 4.01 or the interest and principal
received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the
Company from time to time upon Company Request any U.S.
Government Obligations or money held by it as provided in
Section 4.01, which, in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which
such obligations or money were deposited or received.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default. "Event of
Default", whenever used herein, means any one of the
following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions
of Article XIII 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) default in the payment of any interest
(including any Liquidated Damages) upon any Security
when it becomes due and payable, whether or not such
payment is prohibited pursuant to Article XIII hereof,
and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal or
Redemption Price or Repurchase Price of any Security at
its Maturity, whether or not such payment is prohibited
pursuant to Article XIII hereof; or
(c) default in the Company's obligation to provide
notice of a Change in Control as provided by
Section 14.02; or
(d) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after
there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities a
written notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) default under any bond, debenture, note or
other evidence of Indebtedness of the Company or 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 (including
this Indenture), whether such Indebtedness now exists
or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal
amount exceeding $10,000,000 of such Indebtedness when
due and payable after the expiration of any applicable
grace period with respect thereto and shall have
resulted in such Indebtedness in an aggregate principal
amount exceeding $10,000,000 becoming or being declared
due and payable prior to the date on which it would
otherwise have become due and payable, without such
Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within
a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the
Holders of at least 10% in principal amount of the
Outstanding Securities a written notice specifying such
default and requiring the Company to cause such
Indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating
that such notice is a Notice of Default hereunder;
provided, however, that if such default under such
bond, debenture, note, mortgage, indenture or other
instrument or evidence of Indebtedness shall be
remedied or cured by the Company or waived pursuant to
such agreement or instrument, then, unless the maturity
of the Securities shall have been accelerated as
provided herein, the Event of Default hereunder by
reason therefor shall be deemed likewise to have been
thereupon remedied, cured or waived without further
action upon the part of either the Trustee or the
Holders. Subject to the provisions of Section 6.01 and
6.02, the Trustee shall not be deemed to have knowledge
of such default unless either (i) a Responsible Officer
of the Trustee shall have actual knowledge of such
default or (ii) the Trustee shall have received written
notice thereof from the Company, from any Holder, from
the holder of any such Indebtedness or from the trustee
under any such mortgage, indenture or other instrument;
(f) the entry by a court having jurisdiction in
the premises of (i) a decree or order for relief in
respect of the Company in an involuntary case or
proceeding under the Bankruptcy Code or any applicable
Federal or state bankruptcy, insolvency, reorganization
or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary
case or proceeding under the Bankruptcy Code or any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable
federal or State law, or the consent by it to the
filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of
its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as
they become due and its willingness to have a case
commenced against it or to seek an order for relief
under the Bankruptcy code or any applicable bankruptcy,
insolvency or other similar law or the taking of
corporate action by the Company in furtherance of any
such action.
SECTION 5.02. Acceleration of Maturity;
Rescission and Annulment. If an Event of Default (other
than an Event of Default specified in Section 5.01(a), (b),
(f) and (g)) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare
the principal amount of all the Securities to be due and
payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and
any accrued interest and any unpaid Liquidated Damages
thereon shall become immediately due and payable. If an
Event of Default specified in Section 5.01(a) or (b) occurs
and is continuing, the Holder of any Outstanding Security
may, by notice in writing to the Company (with a copy to the
Trustee), declare the principal of such Security to be due
and payable immediately, and upon any such declaration such
principal and (subject to Section 3.07) any accrued interest
and Liquidated Damages thereon shall become immediately due
and payable. If an Event of Default specified in
Sections 5.01(f) and (g) occurs ad is continuing, the
principal and any accrued interest, together with any
Liquidated Damages thereon, on all of the Securities then
Outstanding shall ipso facto become due and payable
immediately 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 and before a judgment or decree for payment of
the money due has been obtained by the Trustee as
hereinafter in this Article V provided, the Holders of a
majority in principal amount of the Outstanding Securities,
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 overdue interest and any Liquidated
Damages thereon on all Securities,
(ii) the principal of any Securities which
have become due otherwise than by such declaration
of acceleration and any interest thereon at the
rate borne by the Securities,
(iii) to the extent that payment of such
interest is lawful, interest upon overdue interest
at a rate per annum equal to the rate otherwise
borne by the Securities plus 1% per annum, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default, other than the
nonpayment of the principal of, and any interest on,
Securities which have become due solely by such
declaration of acceleration, have been cured or waived
as provided in Section 5.13.
No such rescission or annulment shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and
Suits for Enforcement by Trustee. The Company covenants
that if
(a) default is made in the payment of any interest
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 any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal
and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any
overdue principal and on any overdue interest, at a rate of
5.25% per annum, and in addition thereto, such further
amount as shall be sufficient to cover the costs and
expenses of collection, including amounts due the Trustee
and any predecessor Trustee under Section 6.07.
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,
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 of
Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
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 to enforce any
other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
(a) 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 either of their creditors, the Trustee
(irrespective of whether the principal of, and any interest
on, 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,
(i) to file and prove a claim for the whole amount
of principal and interest 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 and each predecessor
Trustee, its agents and counsel) and of the Holders of
Securities allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claim and
to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder of Securities
by his acceptance thereof 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 of
Securities, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, and each predecessor Trustee, its
agents and counsel and any other amounts due the Trustee
under Section 6.07.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security 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 of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such
Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other
similar committee.
(b) If, as of the third day prior to the bar date
for filing proofs of claim in connection with any
bankruptcy, reorganization or similar judicial proceeding
relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other
obligor, the Trustee has failed to file such proofs of claim
under subparagraph (a) of this Section for any and all
amounts owing and unpaid in respect of the Securities, the
holders of Senior Debt shall be entitled and empowered to
file proofs of claim on behalf of the Trustee in accordance
with subparagraph (a) of this Section.
SECTION 5.05. 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 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, and
each predecessor Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect
of which judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article V shall be applied 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 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 6.07; and
SECOND: Subject to Article XIII, to the payment
of the amounts then due and unpaid for principal of and
interest (including Liquidated Damages, if any) on 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 and interest, respectively.
SECTION 5.07. Limitation on Suits. No Holder of
any Security 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 aggregate
principal amount 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 indemnity satisfactory to it 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 aggregate
principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such
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 of such Holders, or to obtain or seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all
such Holders.
SECTION 5.08. Unconditional Right of Holders to
Receive Principal and Interest and to Convert.
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article XIII, the Holder of any
Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and
(subject to Section 3.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or,
in the case of redemption or repurchase, on the Redemption
Date or Repurchase Date, as the case may be), and to convert
such Security in accordance with Article XII; provided that
such Holder delivers the conversion notice required by
Section 12.02, and to institute suit for the enforcement of
any such payment and right to convert, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security 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, subject to any determination in such proceeding, the
Company, the Trustee and the Holders of Securities shall be
restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies
of the Trustee and such Holders shall continue as though no
such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities 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 5.11. 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 any
acquiescence therein. Every right and remedy given by this
Article V or by law to the Trustee or to the Holders of
Securities may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
SECTION 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities shall, subject to Section 6.03(e),
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 such direction shall not be in
conflict with any rule of law or with this Indenture, and
provided further that (subject to the provisions of
Sections 6.01 and 6.03) the Trustee shall have the right to
decline to follow any such direction if (a) the Trustee,
being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken, (b) the
Trustee by its board of directors or the executive committee
thereof or a trust committee of its directors and/or
Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in
personal liability or (c) the Trustee shall so determine
that the actions or forbearances specified in or pursuant to
such direction would be unduly prejudicial to the interests
of Holders of the Securities not joining in the giving of
said direction, it being understood that (subject to
Sections 6.01 and 6.03) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right
of the Trustee to take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The
Holders of not less than a majority in principal amount 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 (1) in the payment of the
principal of or interest on any Security, or (2) in respect
of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the
Holders of each Outstanding Security 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.
SECTION 5.14. 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 and expenses, 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 5.14 shall not apply to any suit
instituted by the Company, 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 aggregate
principal amount of the Outstanding Securities, or to any
suit instituted by any Holder of any Security for the
enforcement of the payment of the principal of or interest
on any Security on or after the respective Stated Maturity
or Maturities expressed in such Security (or, in the case of
redemption or repurchase, on or after the Redemption Date or
the Repurchase Date, as the case may be) or for the
enforcement of the right to convert any Security in
accordance with Article XII.
SECTION 5.15. Waiver of Stay or Extension 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 wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law
and covenants that it will not 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 VI
The Trustee
SECTION 6.01. Certain Duties and
Responsibilities. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the
conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its
own wilful misconduct, except that
(i) this paragraph (c) shall not be construed to
limit the effect of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to it against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. Within 90 days
after the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Holders of Securities, 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 (or premium, if any) or
interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in
the interest of the Holders of the Securities; and provided,
further, that in the case of any default of the character
specified in Section 5.01(4), no such notice to Holders of
Securities shall be given until at least 30 days after the
occurrence of such default. For the purpose of this
Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event
of Default.
SECTION 6.03. Certain Rights of Trustee. Subject
to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any Board Resolution,
resolution, Officers' Certificate, other certificate,
statement, instrument, Opinion of Counsel, 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 of the Company shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an
Officers' Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel (at the
expense of the Company) and the advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee 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
of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or
indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(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, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee 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; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it
hereunder.
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities. 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. The Trustee shall not be accountable for the
use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.05. May Hold Securities, Act as Trustee
Under Other Indentures. The Trustee, any Authenticating
Agent, any Paying Agent, any Conversion Agent or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company with the
same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent,
Security Register or such other agent.
SECTION 6.06. Money Held in Trust. Money held by
the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed
with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse each of the Trustee and any predecessor
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by it in
accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be
attributable to its own negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its power or duties
hereunder and the cost and expenses of enforcing this right
of indemnity, except to the extent any such loss, liability
or expense is due to its own negligence, willful misconduct
or bad faith.
To ensure the performance of the obligations of
the Company under this Section, the Trustee shall have a
senior claim to which the Securities are hereby made
subordinate upon all property and funds held or collected by
the Trustee as such, except property and funds held in trust
for the payment of principal of, premium, if any, or
interest on particular Securities.
Without limiting any rights available to the
Trustee under applicable law, when the Trustee incurs
expenses or renders services in connection with an Event of
Default specified in Section 5.01(f) or Section 5.01(g), the
expenses (including the reasonable charges and expenses of
its counsel) and compensation for the services are intended
to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other
similar law.
The provisions of this Section shall survive the
termination of this Indenture and the resignation or removal
of the Trustee.
SECTION 6.08. Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee
hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any
state thereof, or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a
combined capital and surplus of at least U.S. $50,000,000,
subject to supervision or examination by Federal or state
authority, in good standing and having an established place
of business or an agent with an established place of
business in The City of New York. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of said 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, it shall
resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.09. Resignation and Removal;
Appointment of Successor. (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 in
accordance with the applicable requirements of Section 6.10.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by this
Section 6.09 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by an
Act of the Holders of a majority in principal amount of the
Outstanding Securities, delivered to the Trustee and the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with
Section 310(b) of the Trust Indenture Act 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
(ii) the Trustee shall cease to be eligible
under Section 6.08 and shall fail to resign after
written request therefor by the Company or by any
Holder, or
(iii) 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 such case (i) the Company by a Board Resolution
may remove the Trustee, or (ii) subject to Section 5.14, any
Holder of a 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 or Trustees.
(e) If the Trustee shall resign, 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 and
shall comply with the applicable requirements of this
Section 6.09. If, within one year after such resignation,
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 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 in accordance with
the applicable requirements of this Section 6.09, 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
Securities and accepted appointment in the manner required
by this Section 6.09, any Holder of a 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
appointment of a successor Trustee.
(f) The Company shall give notice of each
resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders of
Securities by mailing written notice of such event by first-
class mail, postage prepaid, to all 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.
SECTION 6.10. 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; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
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, powers and trusts.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be eligible under this Article.
Upon the acceptance of appointment by any
successor Trustee, all fees, charges and expenses of the
retiring Trustee shall become immediately due and payable
upon the rendering of a statement thereof.
SECTION 6.11. 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 otherwise eligible under this Article,
without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 6.12. Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents acceptable to
the Company with respect to the Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities issued upon exchange or substitution pursuant to
this Indenture. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by
the Trustee hereunder, and every reference in this Indenture
to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication shall
be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall at
all times be a corporation organized and doing business
under the laws of the United States of America or any State
thereof and authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus
of not less than U.S. $50,000,000 or its equivalent (or its
parent holding company has a combined capital and surplus of
not less than U.S. $50,000,000 or its equivalent) in another
currency or composite currencies and subject to supervision
or examination by government authority. If such
Authenticating Agent (or its parent holding company)
publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or
examining authority, then for the purposes of this
Section 6.12, the combined capital and surplus of such
Authenticating Agent 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 an Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section 6.12.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent; provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of
any paper or any further act on the part of the Trustee or
the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to
the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of
this Section 6.12.
If an Authenticating Agent is appointed with
respect to the Securities pursuant to this Section 6.12, the
Securities may have endorsed thereon, in addition to or in
lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: ▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee,
by Authenticating Agent (or
authorized representative), as
Authenticating Agent,
by ___________________________
Authorized Signatory
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.01. 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 the
Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of Securities as of such
Regular Record Date, and
(b) at such other times as the Trustee may
reasonably request in writing, within 30 days after the
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;
excluding from any such list names and addresses received by
the Trustee in its capacity as Security Registrar.
SECTION 7.02. Preservation of Information;
Communications to Holders. (a) The Trustee shall preserve,
in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy
any list furnished to it pursuant to Section 7.01 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with
other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act for holders of securities issued
under an indenture qualified pursuant to the Trust Indenture
Act.
(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 any
disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act or the
Code.
SECTION 7.03. Reports by the Company. (a) The
Company shall 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 by
rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act. In the event the Company is
not subject to Section 13 or 15(d) of the Exchange Act, it
shall file with the Trustee upon request the information
required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
(b) The Company shall file with the Trustee such
additional information, documents and reports with respect
to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be requested
from time to time by the Trustee.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, etc., Only
on Certain Terms. The Company shall not consolidate with or
merge into any other Person or, directly or indirectly,
convey, transfer, sell or lease or otherwise dispose of all
or substantially all of its properties and assets to any
Person (other than a wholly owned subsidiary), and the
Company shall not permit any Person (other than a wholly
owned Subsidiary of the Company) to consolidate with or
merge into the Company or convey, transfer, sell or lease
all or substantially all of its properties and assets to the
Company, unless:
(a) in case the Company shall consolidate with or
merge into another Person or convey, transfer, sell or
lease all or substantially all of its properties and
assets to any Person, the Person formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance, transfer or
sale, or which leases, all or substantially all of the
properties and assets of the Company shall be a
corporation, partnership or trust, shall be organized
and validly existing under the laws of the United
States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, the due and punctual payment of the principal
of and interest (including Liquidated Damages) on all
of the Securities, as applicable, and the performance
or observance of every covenant of this Indenture on
the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance
with Section 12.12;
(b) immediately after giving effect to such
transaction and treating any indebtedness which becomes
an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an
Event of Default, shall have happened and be
continuing; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer, sale or lease and, if a supplemental
indenture is required in connection with such
transaction, such supplemental indenture comply with
this Article VIII and that all conditions precedent
herein provided for relating to such transaction have
been complied with.
SECTION 8.02. Successor Substituted. Upon any
consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, sale or
lease of all or the properties and assets of the Company in
accordance with Section 8.01, the successor Person formed by
such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named
as the Company herein, and thereafter the predecessor Person
shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders of Securities. Without the consent of
any Holders of Securities, 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, for any of the following purposes:
(a) to evidence the succession of another Person
to the Company and the assumption by any such successor
of the covenants and obligations of the Company herein
and in the Securities as permitted by this Indenture;
or
(b) to add to the covenants of the Company for the
benefit of the Holders of Securities, or to surrender
any right or power herein conferred upon the Company;
or
(c) to secure the Securities; or
(d) to modify the restrictions on, and procedures
for, resale and other transfers of the Securities to
the extent required by any change in applicable law or
regulation (or the interpretation thereof) or in
practice relating to the resale or transfer of
restricted securities generally; or
(e) to make provision with respect to the
conversion rights of Holders of Securities pursuant to
Section 12.12; or
(f) to accommodate the issuance, if any, of
Securities in book-entry or definitive form and matters
related thereto which do not adversely affect the
interest of the Holders of Securities; or
(g) to comply with any requirements of the
Commission in order to effect and maintain the
qualification of this Indenture under the Trust
Indenture Act; or
(h) to cure any ambiguity, to correct or
supplement any provision herein, which may be
inconsistent with any other provision herein or which
is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this
Indenture as the Company and the Trustee may deem
necessary or desirable; provided that such action
pursuant to this clause (h) shall not adversely affect
the interests of the Holders of Securities in any
material respect.
Upon Company Request, accompanied by a Board Resolution
authorizing the execution of any such supplemental
indenture, and subject to and upon receipt by the Trustee of
the documents described in Section 9.03 hereof, the Trustee
shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms
of this Indenture and any further appropriate agreements and
stipulations which may be therein contained.
SECTION 9.02. Supplemental Indentures with
Consent of Holders of Securities. With the consent of the
Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, by the 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 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 of Securities under this
Indenture; provided, however, that no such supplemental
indenture shall, without the consent or affirmative vote of
the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of the principal
of, or any installment of interest on, any Security, or
reduce the principal amount thereof or the rate of
interest payable thereon or any premium payable upon
redemption or mandatory repurchase thereof, or change
the coin or currency in which any Security or the
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the
case of redemption or repurchase, on or after the
Redemption Date or Repurchase Date, as the case may be)
or, except as permitted by Section 12.12, adversely
affect the right to convert any Security as provided in
Article XII, or modify the provisions of this Indenture
with respect to the subordination of the Securities in
a manner adverse to the Holders of Securities, or
(ii) reduce the requirements of Section 10.04 for
quorum or voting, or reduce the percentage in aggregate
principal amount 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 provided for in this
Indenture, or
(iii) modify any of the provisions of this Section,
Section 5.13 or Section 10.11, except to increase any
percentage contained herein or therein or to provide
that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, or
(iv) modify any provisions of Article XII, XIII or
XIV in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders
of Securities under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental
Indentures. In executing, or accepting the additional
trusts created by, any supplemental indenture 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 Section 6.01) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture and an Officers'
Certificate to the effect that all conditions precedent have
been satisfied. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. 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 9.05. 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 Company and
the Trustee, 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 X
Covenants
SECTION 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of
and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
SECTION 10.02. Maintenance of Offices or
Agencies. The Company hereby appoints the principal
corporate trust office of the Trustee (or its agent in The
City of New York) as its agent in The City of New York where
Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of
transfer or exchange, where conversion notices, certificates
and other items required to be delivered to effect
conversion may be delivered and where notices and demands to
or upon the Company in respect of the Securities and this
Indenture may be served.
The Company hereby appoints the principal
corporate trust office of the Trustee (or its agent in The
City of New York) as Paying Agent for the payment of
principal of and interest on the Securities and as
Conversion Agent for the Conversion of any of the Securities
in accordance with Article XII, and appoints such office of
the Trustee or its agent in the City of New York as transfer
agent where Securities may be surrendered for registration
of transfer or exchange.
The Company may at any time and from time to time
vary or terminate the appointment of any such agent or
appoint any additional agents with or without cause for any
or all of such purposes; provided, however, that until all
of the Securities have been delivered to the Trustee for
cancelation, or moneys sufficient to pay the principal of
and interest on the Securities have been made available for
payment and either paid or returned to the Company pursuant
to the provisions of Section 10.03, the Company will
maintain (i) in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may
be surrendered for registration of transfer or exchange,
where Securities may be surrendered for conversion and where
notices and demands to or upon the Company, in respect of
the Securities and this Indenture may be served, and
(ii) subject to any laws or regulations applicable thereto,
in any city in a Western European country, an office or
agency where Securities may be presented and surrendered for
payment and where Securities may be presented for
registration of transfer or exchange or conversion thereof.
The Company will give prompt written notice to the Trustee,
and will give notice to Holders of Securities in the manner
specified in Section 1.05, of the appointment or termination
of any such agents and of the location and any change in the
location of any such office or agency.
If at any time the Company shall fail to maintain
any such required office or agency, or shall fail to furnish
the Trustee with the address thereof, presentations and
surrenders may be made and notices and demands may be served
on and Securities may be surrendered for conversion to the
Corporate Trust Office of the Trustee, and the Company
hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
SECTION 10.03. Money for Security Payments To Be
Held in Trust. If the Company at any time shall act as its
own Paying Agent, it will, on or before each due date of the
principal of or interest on any of the Securities, segregate
and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and the Company
will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying
Agents, it will, prior to or on each due date of the
principal of or interest on any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of any failure so
to act.
The Company will cause each Paying Agent other
than the Trustee or affiliate of 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:
(a) hold all sums held by it for the payment of
the principal of 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 written notice of any default
by the Company (or any other obligor upon the
securities) in the making of any payment of principal
or interest; and
(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.
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.
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 or interest on (together with any
Liquidated Damages in respect thereof) any Security and
remaining unclaimed for two years after such principal or
interest (together with any Liquidated Damages in respect
thereof) has become due and payable shall 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 a general unsecured 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 making any
such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, 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
publication, any unclaimed balance of such money then
remaining will be repaid to the Company; and provided
further that any such publication shall not relieve the
Trustee or any Paying Agent of their obligation to pay any
amounts to the Company in the manner provided in this
Section 10.03.
SECTION 10.04. Corporate Existence. Subject to
Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or
franchise 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
that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.05. Maintenance of Properties. The
Company will cause all material properties used or useful in
the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment and will cause to be made (subject, however, to
any limitations on expenditures in any document evidencing
and/or securing Senior Debt) all necessary repairs,
renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this
Section 10.05 shall prevent the Company from discontinuing
the operation or 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 disadvantageous in any material
respect to the Holders.
SECTION 10.06. Compliance with Laws. The Company
will comply, and cause each Subsidiary to comply, with the
requirements of all applicable laws, ordinances, rules,
regulations, and requirements of any governmental authority
(including, without limitation, ERISA and the rules and
regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by
appropriate proceedings or where the failure to comply would
not have a material adverse effect upon the Company and its
Subsidiaries taken as a whole.
SECTION 10.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all
taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any
Subsidiary, and (b) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary;
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.
SECTION 10.08. Delivery of Certain Information.
At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act or is exempt therefrom, upon the
request of a Holder of a Restricted Security or the holder
of Common Stock issued upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder of Restricted
Securities or such holder of Common Stock issued upon
conversion of Restricted Securities, or to a prospective
purchaser of such security designated by any such Holder or
holder, as the case may be, to the extent required to permit
compliance by such holder with Rule 144A under the
Securities Act (or any successor provision thereto) in
connection with the resale of such Security by such Holder;
provided, however, that the Company shall not be required to
furnish such information in connection with any request made
on or after the date which is two years from the later of
(i) the date such a security (or any predecessor security)
was acquired from the Company or (ii) the date such a
security (or any predecessor security) was last acquired
from the Company or an "affiliate" of the Company within the
meaning of Rule 144 under the Securities Act (or any
successor provision thereto); and provided further that the
Company shall not be required to furnish such information at
any time to a prospective purchaser located outside the
United States who is not a "U.S. Person" within the meaning
of Regulation S under the Securities Act if such Security
may then be sold to such prospective purchaser in accordance
with Rule 904 under the Securities Act (or any successor
provision thereto). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision
thereto).
SECTION 10.09. Statement by Officers as to
Default. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of
the Officers signing such certificate, with a view to
determining whether any default exists in the performance
and observance of any of the terms, provisions and
conditions of this Indenture and whether the Company has
observed, performed and fulfilled its obligations under this
Indenture. If the Officers signing the Certificate know of
such a default, the Officers' Certificate shall describe
such default and its status with particularity. The Company
shall also promptly notify the Trustee if the Company's
fiscal year is changed so that the end thereof is on any
date other than the then current fiscal year end date.
The Company will also deliver to the Trustee,
forthwith upon any Officer becoming aware of any Event of
Default, an Officers' Certificate specifying with
particularity such default or Event of Default and further
stating what action the Company has taken, is taking or
proposes to take with respect thereto.
Any notice required to be given under this
Section 10.09 shall be delivered to the Trustee at its
Corporate Trust Office and need not comply with
Section 1.04.
SECTION 10.10. Resale of Certain Securities.
During the period beginning on September 10, 1997, and
ending on September 10, 2000, the Company will not, and will
not permit any of its "affiliates" (as defined under
Rule 144 under the Securities Act or any successor provision
thereto) to, resell (x) any Securities which constitute
"restricted securities" under Rule 144 or (y) any securities
into which such Securities have been converted under this
Indenture, which constitute "restricted securities" under
Rule 144 that in either case have been reacquired by any of
them. The Trustee shall have no responsibility in respect
of the Company's performance of its agreement in the
preceding sentence.
SECTION 10.11. Waiver of Certain Covenants. The
Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 10.05 or
10.06 if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding
Securities (or such lesser amount as shall have acted at a
meeting pursuant to the provisions of this Indenture) shall
either waive such compliance in such instance or generally
waive compliance 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.
SECTION 10.12. Registration Rights. The holders
of the Securities and the Common Stock issuable upon
conversion thereof are entitled to the benefits of a
Registration Rights Agreement, dated as of September 4,
1997, between the Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc. and
Salomon Brothers Inc (the "Registration Rights Agreement").
Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of, premium, if
any, or interest on, or in respect of, any Security, such
mention shall be deemed to include mention of the payment of
Liquidated Damages provided for in this Section to the
extent that, in such context, Liquidated Damages are, were
or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the
payment of Liquidated Damages (if applicable) in any
provisions hereof shall not be construed as excluding
Liquidated Damages in those provisions hereof where such
express mention is not made.
SECTION 10.13. Book-Entry System. If the
Securities cease to trade in the U.S. Depository's
book-entry settlement system, the Company covenants and
agrees that it shall use reasonable efforts to make such
other book-entry arrangements that it determines are
reasonable for the Securities.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. The
Securities shall be redeemable at the Company's option, in
whole or in part, under the circumstances and at the
Redemption Prices specified in the form of Securities set
forth in Sections 2.02 and 2.03.
SECTION 11.02. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted or required by any provision of the Securities or
this Indenture, shall be made in accordance with such
provision and this Article XI.
SECTION 11.03. Election To Redeem; Notice to
Trustee. The election of the Company to redeem any
Securities pursuant to Section 11.01 shall be evidenced by a
Board Resolution. In the case of any redemption at the
election of the Company of all of the Securities, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing
of such Redemption Date. If the Securities are to be
redeemed pursuant to an election of the Company which is
subject to a condition specified in the forms of Securities
set forth in Section 2.02, the Company shall furnish the
Trustee with (a) an Officers' Certificate stating that the
Company is entitled to effect such redemption and setting
forth a statement of facts demonstrating the same and (b) an
Opinion of Counsel to the effect that the Company is
entitled to effect such redemption, and such redemption is
not otherwise in violation of any provisions of Senior Debt.
SECTION 11.04. Notice of Redemption. Notice of
redemption shall be given in the manner provided in
Section 1.05 to the Holders of Securities to be redeemed.
Notice shall be given at least once not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price, and the amount of
accrued interest, if any;
(c) that on the Redemption Date the Redemption
Price, and accrued interest, if any, will become due
and payable, and that interest thereon shall cease to
accrue on and after said date;
(d) the Conversion Price, the date on which the
right to convert the Securities will terminate and the
places where the Securities may be surrendered for
conversion; and
(e) the place or places where the Securities are
to be surrendered for payment of the Redemption Price
and accrued interest, if any.
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 request, by the Trustee in the name of
and at the expense of the Company, and such notice, when
given to the Holders, shall be irrevocable.
SECTION 11.05. Deposit of Redemption Price. At
least one Business Day prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as Paying Agent,
segregate and hold in trust as provided in Section 10.03) an
amount of money 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 which
are to be redeemed on that date other than any Securities
called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security called for redemption is
converted, any money deposited with the Trustee or with a
Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of
the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of
Section 3.07) be paid to the Company on Company Request or,
if then held by the Company, shall be discharged from such
trust.
SECTION 11.06. 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 herein
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, the Holder of
such Security shall be paid the Redemption Price, together
with accrued interest to the Redemption Date; 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 at the close of business on
the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
shall, until paid, bear interest from the Redemption Date at
the rate of interest borne by the Security.
ARTICLE XII
Conversion of Securities
SECTION 12.01. Conversion Privilege and
Conversion Rate. Subject to and upon compliance with the
provisions of this Article, at any time on or after December
9, 1997, at the option of the Holder thereof, any Security
or any portion of the principal amount thereof which is
$1,000 or any integral multiple of $1,000 in excess thereof,
may be converted at any time after the Non-Conversion Period
(as such term is defined in Section 2.03 hereof) at the
principal amount thereof, or of such portion thereof, into
fully paid and nonassessable Common Stock of the Company
(calculated as to each conversion to the nearest 1/100 of a
share) at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. Such
conversion right shall expire at the close of business on
the redemption date or repurchase date for such Security;
subject, in the case of conversion of a Global Security, to
any applicable book-entry procedures of the Depository for
such conversion. In case a Security or portion thereof is
called for redemption at the election of the Company or is
delivered for repurchase at the option of the Holder, such
conversion right in respect of the Security or portion
thereof so called shall expire at the close of business on
the Redemption Date or the Repurchase Date, unless the
Company defaults in making the payment due upon redemption
or the repurchase, as the case may be (subject as aforesaid
to any applicable book-entry procedures).
The rate at which Common Stock shall be delivered
upon conversion (herein called the "Conversion Rate") shall
be initially 13.836 shares of Common Stock for each
U.S.$1,000 principal amount of Securities. The Conversion
Rate shall be adjusted in certain instances as provided in
this Article XII. The price at which Common Stock shall be
delivered upon conversion (herein called the "Conversion
Price") shall at any time be equal to U.S. $1,000 divided by
the then applicable Conversion Rate (and rounded to the
nearest cent).
SECTION 12.02. Exercise of Conversion Privilege.
In order to exercise the conversion privilege with respect
to any Security or portion thereof, the Holder of any
Security to be converted or any other person acting on its
behalf shall surrender such Security, duly endorsed or
assigned to the Company or in blank at any office or agency
of the Company maintained for that purpose pursuant to
Section 10.02, accompanied by a duly signed conversion
notice substantially in the form set forth in Annex A
stating that the Holder elects to convert such Security or,
if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted.
Alternatively, if such security is represented by a Global
Security, conversion may be effected by written order given
to the Trustee in accordance with the applicable procedures
of the U.S. Depository then in effect. Each Security
surrendered for conversion (in whole or in part) during the
period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the
case of any Security or portion thereof which has been
called for redemption on a Redemption Date or repurchase on
a Repurchase Date and, as a result, the right to convert
such Security with respect to which the Holder has exercised
redemption or repurchase rights would terminate during such
period) be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date
on the principal amount of such Security (or part thereof as
the case may be) being surrendered for conversion. The
interest so payable on such Interest Payment Date in respect
of such Security (or portion thereof, as the case may be)
surrendered for conversion shall be paid to the Holder of
such Security as of such Regular Record Date. Interest
payable in respect of any Security surrendered for
conversion on or after an Interest Payment Date shall be
paid to the Holder of such Security as of the next preceding
Regular Record Date, notwithstanding the exercise of the
right of conversion. Except as provided in this paragraph
and subject to the last paragraph of Section 3.07, no cash
payment or adjustment shall be made on account of any cash
dividends on the Common Stock issued upon conversion or, if
the date of conversion is not an Interest Payment Date, on
account of any interest accrued from the Interest Payment
Date next preceding the conversion date, in respect of any
Security (or part thereof, as the case may be) surrendered
for conversion.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day of
surrender of such Securities for conversion in accordance
with the foregoing provisions, and at such time the rights
of the Holders of such Securities as Holders shall cease,
and the Person or Persons entitled to receive the Common
Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common
Stock at such time (unless such Holder shall have so
surrendered such Security and shall have instructed the
Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled
to convert such Security on such date, in which case such
conversion shall be deemed to be effected immediately prior
to the close of business on such date). As promptly as
practicable on or after the conversion date, the Company
shall issue and deliver, out of its authorized but
previously unissued (or, in the case of treasury stock of
the Company, validly issued) Shares of Common Stock, at the
office of such Conversion Agent a certificate or
certificates for the number of full shares of newly issued
Common Stock issuable upon conversion, together with payment
in lieu of any fraction of a share, as provided in
Section 12.03.
All Common Stock delivered upon such conversion of
Restricted Securities shall bear a restrictive legend
substantially in the form of the legend required to be set
forth on the Restricted Securities pursuant to Section 2.02
and shall be subject to the restrictions on transfer
provided in such legend. Neither the Trustee nor any agent
maintained for the purpose of such conversion shall have any
responsibility for the inclusion or content of any such
restrictive legend on such Common Stock; provided, however,
that the Trustee or any agent maintained for the purpose of
such conversion shall have provided, to the Company or to
the Company's transfer agent for such Common Stock, prior to
or concurrently with a request to the Company to deliver to
such agent maintained for the purpose of such conversion
certificates for such Common Stock, written notice that the
Securities delivered for conversion are Restricted
Securities.
In the case of any Security which is converted in
part only, upon such conversion the Company shall execute
and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate
principal amount equal to the unconverted portion of the
principal amount of such Security.
If Common Stock to be issued upon conversion of a
Security, or Securities to be issued upon conversion of a
Security in part only, are to be registered in a name other
than that of the Holder of such Security, the Security
Registrar shall, prior to the conversion of such Security,
record in the Security Register the transfer of that portion
of the Security to be so converted in the name of the person
in whose name such Common Stock or Securities are to be
registered.
SECTION 12.03. Fractions of Common Stock. No
fractional Common Stock or scrip certificates in respect
thereof shall be issued upon conversion of any Security or
Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate principal
amount of the Securities so surrendered. Instead of any
fractional Common Stock which would otherwise be issuable
upon conversion of any Security or Securities, the Company
shall pay a cash adjustment in respect of such fraction
(calculated to the nearest 1/100 of a share) in an amount in
Dollars equal to the same fraction of the current market
price per Common Share (calculated in accordance with
Section 12.04(h) below) at the close of business on the day
of conversion, or alternatively, at the Company's option,
the Company shall round up the conversion transaction to the
next higher whole share.
SECTION 12.04. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from
time to time as follows:
(a) In case at any time after the date hereof,
the Company shall pay or make a dividend or other
distribution on all or any portion of its Common Stock
or shall pay or make a dividend or other distribution
on any other class of capital stock of the Company
which dividend or distribution includes Common Stock,
the Conversion Rate in effect at the opening of
business on the day following the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution shall be increased by
dividing such Conversion Rate by a fraction of which
the numerator shall be the number of Common Stock
outstanding at the close of business on the date fixed
for such determination and the denominator shall be the
sum of such number of shares and the total number of
shares constituting such dividend or other
distribution, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (a), the number of
Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall
include shares issuable in respect of scrip
certificates, if any, issued in lieu of fractions of
Common Stock. If any dividend or distribution of the
type described in this Section 12.04(a) is declared but
not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate which would then be in
effect if such dividend or distribution had not been
declared.
(b) In case at any time after the date hereof,
the Company shall pay or make a dividend or other
distribution on all of its Common Stock consisting of,
or shall otherwise issue to all holders of its Common
Stock, rights, warrants or options (not being available
on an equivalent basis to Holders of the Securities
upon conversion) entitling the holders of its Common
Stock to subscribe for or purchase Common Stock at a
price per share less than the current market price per
share (determined as provided in paragraph (h) of this
Section 12.04) of the Common Stock on the date fixed
for the determination of shareholders entitled to
receive such rights, warrants or options (other than
pursuant to a dividend reinvestment plan), the
Conversion Rate in effect at the opening of business on
the day following the date fixed for such determination
shall be increased by dividing such Conversion Rate by
a fraction of which the numerator shall be the number
of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number
of Common Stock which the aggregate of the offering
price of the total number of Common Stock so offered
for subscription or purchase would purchase at such
current market price and the denominator shall be the
number of Common Stock outstanding at the close of
business on the date fixed for such determination plus
the number of Common Stock so offered for subscription
or purchase, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (b), the number of
Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but will
include shares issuable in respect of scrip
certificates, if any, issued in lieu of fractions of
Common Stock. The Company will not issue any rights or
warrants in respect of Common Stock held in the
treasury of the Company (or, if rights or warrants are
issued in respect of all of the Common Stock of the
Company, will not exercise any such rights or warrants
in respect of Common Stock held in the treasury of the
Company). In the event that such rights or warrants
are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be
in effect if such date fixed for the determination of
stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether
any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than
such current market price, and in determining the
aggregate offering price of such share of Common Stock,
there shall be taken into account any consideration
received for such rights or warrants, the value of such
consideration, if other than cash, to be determined by
the Board of Directors of the Company.
(c) In case at any time after the date hereof,
all or any portion of the Common Stock outstanding
shall be subdivided into a greater number of Common
Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
increased, and, conversely in case at any time after
the date hereof, all or any portion of the Common Stock
outstanding shall each be combined into a smaller
number of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as
the case may be, to become effective immediately after
the opening of business on the day following the day
upon which such subdivision or combination becomes
effective.
(d) In case at any time after the date hereof,
the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but
excluding any rights, warrants or options referred to
in paragraph (b) of this Section 12.04, any dividend or
distribution paid exclusively in cash, any dividend or
distribution referred to in paragraph (a) of this
Section 12.04 and any dividend or distribution upon a
merger or consolidation referred to in paragraph (e) of
this Section 12.04), the Conversion Rate shall be
increased so that the same shall equal the rate
determined by dividing the Conversion Rate in effect
immediately prior to the close of business on the date
fixed for the determination of shareholders entitled to
receive such distribution by a fraction of which the
numerator shall be the current market price per share
(determined as provided in paragraph (h) of this
Section 12.04) of the Common Stock on the date fixed
for such determination less the then fair market value
(as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion
of the assets or evidences of indebtedness so
distributed applicable to one Common Share and the
denominator shall be such current market price per
share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business
on the day following the date fixed for the
determination of shareholders entitled to receive such
distribution. If any dividend or distribution of the
type described in this Section 12.04(d) is declared but
not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate which would be in
effect if such dividend or distribution had not been
declared.
(e) In case at any time after the date hereof,
the Company shall, by dividend or otherwise, make a
distribution to all holders of its Common Stock
consisting exclusively of cash (excluding any cash that
is distributed upon a merger or consolidation or a sale
or transfer of all or substantially all of the assets
of the Company to which Section 12.11 applies or as
part of a distribution referred to in paragraph (d) of
this Section 12.04) in an aggregate amount that,
combined together with (i) the aggregate amount of any
other distributions to all holders of its Common Stock
made exclusively in cash within the 12 months preceding
the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (e)
has been made and (ii) the aggregate of any cash plus
the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee)
of consideration payable in respect of any tender offer
by the Company or any of its Subsidiaries for all or
any portion of the Common Stock concluded within the 12
months preceding the date of payment of such
distribution and in respect of which no adjustment
pursuant to paragraph (f) of this Section 12.04 has
been made, exceeds 12.5% of the product of the current
market price per share of the Common Stock on the date
for the determination of holders of Common Stock
entitled to receive such distribution times the number
of Common Stock outstanding on such date, then, and in
each such case, immediately after the close of business
on such date for determination, the Conversion Rate
shall be increased so that the same shall equal the
rate determined by dividing the Conversion Rate in
effect immediately prior to the close of business on
the date fixed for determination of the shareholders
entitled to receive such distribution by a fraction
(A) the numerator of which shall be equal to the
current market price per share (determined as provided
in paragraph (h) of this Section 12.04) of the Common
Stock on the date fixed for such determination less an
amount equal to the quotient of (x) the excess of such
combined amount over such 12.5% and (y) the number of
shares of Common Stock outstanding on such date for
determination and (B) the denominator of which shall be
equal to the current market price per share (determined
as provided in paragraph (h) of this Section 12.04) of
the Common Stock on such date for determination. If
any dividend or distribution of the type described in
this Section 12.04(e) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to
the Conversion Rate which would be in effect if such
dividend or distribution had not been declared.
(f) In case a tender or exchange offer made by
the Company or any Subsidiary for all or any portion of
the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof)
shall require the payment to shareholders (based on the
acceptance (up to any maximum specified in the terms of
the tender offer) of Purchased Shares (as defined
below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors,
whose determination shall be conclusive and described
in a Board Resolution filed with the Trustee) that
combined together with (i) the aggregate of the cash
plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive
and described in a Board Resolution), as of the
expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or
exchange offer, by the Company or any Subsidiary for
all or any portion of the Common Stock expiring within
the 12 months preceding the expiration of such tender
or exchange offer and in respect of which no
adjustment, pursuant to this paragraph (f) has been
made and (ii) the aggregate amount of any distributions
to all holders of the Company's Common Stock made
exclusively in cash within 12 months preceding the
expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph
(e) of this Section 12.04 has been made, exceeds 12.5%
of the product of the current market price per share of
the Common Stock (determined as provided in
paragraph (h) of this Section 12.04) as of the last
time (the "Expiration Time") tenders or exchanges could
have been made pursuant to such tender or exchange
offer (as it may be amended) times the number of Common
Stock outstanding (including any tendered or exchanged
shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on
the day after the date of the Expiration Time, the
Conversion Rate shall be adjusted so that the same
shall equal the rate determined by dividing the
Conversion Rate immediately prior to the close of
business on the date of the Expiration Time by a
fraction (A) the numerator of which shall be equal to
(1) the product of (x) the current market price per
share of the Common Stock (determined as provided in
paragraph (h) of this Section 12.04) on the date of the
Expiration Time and (y) the number of shares of Common
Stock outstanding (including any tendered or exchanged
shares) on the date of the Expiration Time less (2) the
amount of cash plus the fair market value (determined
as aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of
Purchased Shares, and (B) the denominator of which
shall be equal to the product of (x) the current market
price per share of the Common Stock (determined as
provided in paragraph (h) of this Section 12.04) as of
the Expiration Time and (y) the number of shares of
Common Stock outstanding (including any tendered or
exchanged shares) as of the Expiration Time less the
number of all shares validly tendered or exchanged 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"). In the event
that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded,
the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such
tender offer had not been made.
(g) The reclassification of Common Stock into
securities other than Common Stock (other than any
reclassification upon a consolidation or merger to
which Section 12.11 applies) shall be deemed to involve
(i) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be
"the date fixed for the determination of shareholders
entitled to receive such distribution" and "the date
fixed for such determination" within the meaning of
paragraph (c) of this Section 12.04), and (ii) a
subdivision or combination, as the case may be, of the
number of Common Stock outstanding immediately prior to
such reclassification into the number of Common Stock
outstanding immediately thereafter (and the effective
date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective"
or "the day upon which such combination becomes
effective," as the case may be, and "the day upon which
such subdivision or combination becomes effective"
within the meaning of paragraph (3) of this
Section 12.04).
(h) For the purpose of any computation under
paragraphs (b), (d), (e) or (f) of this Section 12.04,
the current market price per share of Common Stock on
any date shall be deemed to be the average of the daily
Closing Prices Per Share for the five consecutive
Trading Days selected by the Company commencing not
more than 10 Trading Days before, and ending not later
than, the earlier of the day in question and the day
before the "ex" date with respect to the issuance or
distribution requiring such computation. For purposes
of this paragraph, the term "'ex' date", when used with
respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way
on the applicable securities exchange or in the
applicable securities market without the right to
receive such issuance or distribution.
(i) No adjustment in the Conversion Rate shall be
required unless such adjustment (plus any adjustments
not previously made by reason of this paragraph (i))
would require an increase or decrease of at least one
percent in such rate; provided, however, that any
adjustments which by reason of this paragraph (i) are
not required to be made shall be carried forward and
taken into account in any subsequent adjustment. In
the case of any adjustment deferred pursuant to this
paragraph (i), the Company shall make appropriate
elections under the Treasury Regulations promulgated
pursuant to Section 305 of the Internal Revenue Code of
1986, as amended.
(j) The Company may make such increases in the
Conversion Rate, for the remaining term of the
Securities or any shorter term, in addition to those
required by paragraphs (a), (b), (c), (d), (e) and (f)
of this Section 12.04, as it considers to be advisable
in order to avoid or diminish any income tax to any
holders of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants
to purchase or subscribe for stock or from any event
treated as such for United States Federal income tax
purposes or for any other reasons. The Company shall
have the power to resolve any ambiguity or correct any
error in this paragraph (j) and its actions in so doing
shall be final and conclusive.
SECTION 12.05. Notice of Adjustments of
Conversion Rate. Whenever the Conversion Rate is adjusted
as herein provided:
(a) the Company shall compute the adjusted
Conversion Rate in accordance with Section 12.04 and
shall prepare a certificate signed by the Treasurer of
the Company setting forth the adjusted Conversion Rate
and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall
forthwith promptly be filed with the Trustee and with
each Conversion Agent; and
(b) a notice stating that the Conversion Rate has
been adjusted and setting forth the adjusted Conversion
Rate shall forthwith be prepared, and as soon as
practicable after it is prepared, such notice shall be
provided by the Company to all Holders in accordance
with Section 1.05.
Neither the Trustee nor any Conversion Agent shall be under
any duty or responsibility with respect to any such
certificate, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during
normal business hours.
SECTION 12.06. Notice of Certain Corporate
Action. In case:
(a) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable
otherwise than in cash out of funds from which such
dividend or other distribution is properly payable; or
(b) the Company shall authorize the granting to
the holders of its Common Stock of rights or warrants
to subscribe for or purchase any shares of capital
stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of
its outstanding Common Stock), or of any consolidation,
merger or share exchange to which the Company is a
party and for which approval of any shareholders of the
Company is required, or of any tender offer by the
Company or any Subsidiary for all or any portion of the
Common Stock, or of the conveyance, transfer, sale or
lease of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or
agency maintained for the purpose of conversion of
Securities pursuant to Section 10.02, and shall cause to be
provided to all Holders in accordance with Section 1.05, at
least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or
effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights or warrants,
or, if a record is not to be taken, the effective date as of
which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification,
consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities, cash
or other property deliverable upon such reclassification,
consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up.
Neither the failure to give such notice or the notice
referred to in the following paragraph nor any defect
therein shall affect the legality or validity of the
proceedings described in clauses (a) through (d) of this
Section 12.06. If at the time the Trustee shall not be the
Conversion Agent, a copy of such notice and any notice
referred to in the following paragraph shall also forthwith
be filed by the Company with the Trustee.
The Company shall cause to be filed at each office
or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.02, and shall cause to be
provided to all Holders in accordance with Section 1.05,
notice of any tender offer by the Company or any Subsidiary
for all or any portion of the Common Stock at or about the
time that such notice of tender offer is provided to the
public generally.
SECTION 12.07. Company To Reserve Common Stock.
The Company shall at all times while any Securities are
Outstanding reserve and keep available, free from preemptive
rights, out of its authorized but previously unissued Common
Stock, for the purpose of effecting the conversion of
Securities, the full number of Common Stock then issuable
upon the conversion of all such Outstanding Securities.
SECTION 12.08 Taxes on Conversions. Except as
provided in the next sentence, the Company will pay any and
all transfer, stamp, documentary and other similar taxes and
duties that may be payable in respect of the issue or
delivery of Common Stock on conversion of Securities
pursuant hereto. A Holder delivering a Security for
conversion will be required to pay any tax or duty which may
be payable in respect of any transfer involved in the issue
and delivery of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted,
and no such issue or delivery shall be made unless and until
the Person requesting such issue has paid to the Company the
amount of any such tax or duty or has established to the
satisfaction of the Company that such tax or duty has been
paid.
SECTION 12.09. Covenant as to Common Stock. The
Company covenants that all Common Stock which may be
delivered upon conversion of Securities will be validly
issued shares and upon such delivery, will have been fully
paid and nonassessable and, except as provided in
Section 12.08, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION 12.10. Cancelation of Converted
Securities. All Securities delivered for conversion shall
be delivered to the Trustee to be canceled by or at the
direction of the Trustee, which shall dispose of the same as
provided in Section 3.09.
SECTION 12.11 Provision in Case of Consolidation,
Merger or Conveyance of Assets. In case of any
consolidation of the Company with, or merger of the Company
into or with any other Person, or in case of any sale of all
or substantially all of the assets of the Company, the
Company or the Person formed by such consolidation or the
Person into which the Company shall have been merged or the
Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each
Security then outstanding of any series that is convertible
into Common Stock of the Company shall have the right, which
right shall be the exclusive conversion right thereafter
available to said Holder (until the expiration of the
conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other
securities or property (including cash), if any, receivable
upon such consolidation, merger or sale by a holder of the
number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to
such consolidation, merger or sale, subject to compliance
with the other provisions of this Indenture, such Security
and such supplemental indenture. Such supplemental
indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood
that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation
or sale, holders of outstanding shares of Common Stock of
the Company do not receive shares of common stock of the
surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of
Securities shall not have the right to thereafter convert
their Securities into common stock of the surviving
corporation or the corporation which shall have acquired
such assets, but rather, shall have the right upon such
conversion to receive the other securities, cash or other
property receivable by a holder of the number of shares of
Common Stock of the Company into which the Securities held
by such holder might have been converted immediately prior
to such consolidation, merger or sale, all as more fully
provided in the first sentence of this Section 12.11.
Anything in this Section 12.11 to the contrary
notwithstanding, the provisions of this Section 12.11 shall
not apply to a merger or consolidation of another
corporation with or into the Company pursuant to which both
of the following conditions are applicable: (i) the Company
is the surviving corporation and (ii) the outstanding shares
of Common Stock of the Company are not changed or converted
into any other securities or property (including cash) or
changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of
stock or other securities or property (including cash) into
which Securities may properly be convertible after any such
consolidation, merger or sale, or as to the appropriate
adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept
the certificate or opinion of an independent certified
public accountant with respect thereto; and, in the absence
of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or
accountable to any Holder of Securities for any provision in
conformity therewith or approved by such independent
certified accountant which may be contained in said
supplemental indenture.
SECTION 12.12. Responsibility of Trustee for
Conversion Provisions. The Trustee, subject to the
provisions of Section 6.01, and any Conversion Agent shall
not at any time be under any duty or responsibility to any
Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or
with respect to the nature, extent or amount of any such
adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture
provided to be employed, in making the same, or whether a
supplemental indenture need be entered into. Neither the
Trustee, subject to the provisions of Section 6.01, nor any
Conversion Agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Common
Stock, or of any other securities or property or cash, which
may at any time be issued or delivered upon the conversion
of any Security; and it or they do not make any
representation with respect thereto. Neither the Trustee
nor any Conversion Agent shall be responsible for any
failure of the Company to make any cash payment or to issue,
transfer or deliver any Common Stock or share certificates
or other securities or property or cash upon the surrender
of any Security for the purpose of conversion; and the
Trustee and any Conversion Agent shall not be responsible
for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
SECTION 12.13. Repayment of Certain Funds Upon
Conversion. Any funds which at any time shall have been
deposited by the Company or on its behalf with the Trustee
or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on
any of the Securities and which shall not be required for
such purposes because of the conversion of such Securities
as provided in this Article XII shall after such conversion
be repaid to the Company by the Trustee upon the Company's
written request.
ARTICLE XIII
Subordination
SECTION 13.01. Securities Subordinate to Senior
Debt. The Company covenants and agrees, and each Holder of
a Security, by his acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the
provisions of Article IV), the indebtedness represented by
the Securities, and the payment of the principal of,
interest on and all other amounts, if any, owing with
respect to each and all of the Securities are hereby
expressly made subordinate and subject in right of payment
to the prior payment in full in cash or other immediately
available funds of all Senior Debt of the Company.
SECTION 13.02. Payment Over of Proceeds Upon
Dissolution, Etc. In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company
or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshaling of
assets and liabilities of the Company, then and in any such
event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "Proceeding") the
holders of Senior Debt shall be entitled to receive payment
in full of all amounts due or to become due on or in respect
of all Senior Debt, in cash or other immediately available
funds or provision shall be made for such payment in cash or
other immediately available funds or otherwise in a manner
satisfactory to each holder of Senior Debt with respect to
its indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind
or character, whether (i) in cash, property or securities,
on account of principal of, interest on or any other amount,
if any, owing with respect to the Securities or on account
of any purchase or other acquisition of Securities by the
Company or any Subsidiary of the Company, (ii) by way of
cancelation, forgiveness or offset of the indebtedness
evidenced by the Securities against any indebtedness owed by
a Holder to the Company or (iii) payable or deliverable by
reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities
(all such payments, distributions, purchases and
acquisitions herein referred to, individually and
collectively, as a "Securities Payment"), and to that end
the holders of all Senior Debt shall be entitled to receive,
for application to the payment thereof, any Securities
Payment which may be payable or deliverable in respect of
the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Security shall have received any Securities Payment before
all Senior Debt is paid in full in cash or other immediately
available funds or otherwise in a manner satisfactory to
each holder of Senior Debt with respect to its indebtedness,
and if such fact shall, at or prior to the time of such
Securities Payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such Securities Payment
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other Person making payment or
distribution of assets of the Company for application to the
payment of all Senior Debt, to the extent necessary to pay
all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Debt.
For purposes of this Article only, the words "any
payment or distribution of any kind or character, whether in
cash, property or securities" shall not be deemed to include
a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or
readjustment giving effect to these subordination provisions
authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any
applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment
which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially
the same extent as the Securities are so subordinated as
provided in this Article, which shall require that (A) the
final maturity of any such subordinated securities shall
exceed the term of the Senior Debt provided for by such plan
of reorganization or readjustment, and there shall not be
any scheduled principal payment in respect of such
subordinated securities prior to that of such Senior Debt
and (B) such subordinated securities shall be unsecured and
unguaranteed. The consolidation of the Company with, or the
merger of the Company into, another Person or the
liquidation or dissolution of the Company following the
conveyance, transfer, sale or lease of all or substantially
all of its properties and assets to another Person upon the
terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the
Person formed by such consolidation or into which the
Company is merged or the Person which acquires by
conveyance, transfer, sale or lease such properties and
assets, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer, sale or lease
comply with the conditions set forth in Article VIII.
SECTION 13.03. No Payment When Senior Debt in
Default. In the event that any Securities are declared or
otherwise shall become due and payable before their Stated
Maturity (including by reason of a Change in Control) and
there shall have occurred (i) a default in the payment of
principal, premium, if any, or interest (including a default
under any repurchase or redemption obligation) with respect
to any Senior Debt or (ii) any other event of default with
respect to any Senior Debt, permitting the holders thereof
to accelerate the maturity thereof, then and in such event
the holders of the Senior Debt outstanding at the time such
Securities so become due and payable shall be entitled to
receive payment in full of all amounts then due on or in
respect of all Senior Debt in cash or other immediately
available funds or otherwise in a manner satisfactory to the
holders of such Senior Debt, before the Holders of the
Securities are entitled to receive any Securities Payment.
In the event and during the continuation of any
default in the payment of any amount owing in respect of any
Senior Debt beyond any applicable grace period with respect
thereto, or in the event that any event of default with
respect to any Senior Debt shall have occurred and be
continuing permitting the holders of such Senior Debt (or a
trustee or other representative on behalf of the holders
thereof) to declare such Senior Debt due and payable prior
to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or in
the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default,
then no Securities Payment shall be made.
In the event that, notwithstanding the foregoing,
the Company shall make any Securities Payment to the Trustee
or any Holder prohibited by the foregoing provisions of this
Section, and if (1) such fact shall, at or prior to the time
of such Securities Payment, have been made actually known to
a Responsible Officer of the Trustee or, as the case may be,
such Holder or (2) the Securities have been accelerated,
then and in such event such Securities Payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to
any Securities Payment with respect to which Section 13.02
would be applicable.
SECTION 13.04. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the
Company, at any time except during the pendency of any
proceeding referred to in Section 13.02 or under the
conditions described in Section 13.03, from making
Securities Payments, or (b) the application by the Trustee
of any money deposited with it hereunder to Securities
Payments or the retention of such Securities Payment by the
Holders, if, at the time of such application by the Trustee,
it did not have actual knowledge that such Securities
Payment would have been prohibited by the provisions of this
Article.
SECTION 13.05. Subrogation to Rights of Holders
of Senior Debt. Subject to the payment in full of all
amounts due or to become due on or in respect of Senior
Debt, in cash or other immediately available funds or
otherwise in a manner satisfactory to the holders of Senior
Debt, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of and
interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders
of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Debt.
SECTION 13.06. Provisions Solely To Define
Relative Rights. The provisions of this Article are and are
intended solely for the purpose of defining the relative
rights of the Holders of the Securities on the one hand and
the holders of Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall (a) impair, as
among the Company, the creditors of the Company other than
holders of Senior Debt and the Holders of the Securities,
the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this
Article of the holders of Senior Debt, is intended to rank
equally with all other general obligations of the Company),
to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become
due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Trustee
or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash,
property and securities otherwise payable or deliverable to
the Trustee or such Holder.
SECTION 13.07. Trustee To Effectuate
Subordination. Each Holder of a Security by his acceptance
thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 13.08. No Waiver of Subordination
Provisions. No right of any present or future holder of any
Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by
any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt may, at any
time and from time to time, without the consent of or notice
to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the
Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (a) change the manner,
place or terms of payment or the time of payment of, or
renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt
is outstanding; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (c) release any Person liable in any
manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company
and any other Person.
SECTION 13.09. Notice to Trustee. The Company
shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the
Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee
therefor or representative thereof; and, prior to the
receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose
(including, without limitation, the payment of, the
principal of or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice
to the contrary which may be received by it within two
Business Days prior to such date.
The Trustee shall be entitled to rely conclusively
on the delivery to it of a written notice, and proof of
ownership acceptable to the Trustee, by a Person
representing himself to be a holder of Senior Debt (or a
trustee therefor or representative thereof) to establish
that such notice has been given by a holder of Senior Debt
(or a trustee therefor or representative thereof). In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to
receive such payment.
SECTION 13.10. Reliance on Judicial Order or
Certificate of Liquidating Agent. Upon any payment or
distribution of assets of the Company referred to in this
Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 13.11. Trustee Not Fiduciary for Holders
of Senior Debt. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith and
absent gross negligence or willful misconduct, mistakenly
pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities
to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
SECTION 13.12. Rights of Trustee as Holder of
Senior Debt; Preservation of Trustee's Rights. The Trustee
in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior
Debt which may at any time be held by it, to the same extent
as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to
Section 6.07.
SECTION 13.13. Article Applicable to Paying
Agents. In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in addition
to or in place of the Trustee; provided, however, that
Sections 13.09 and 13.12 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 13.14. Subsidiaries. No payment,
distribution of assets or other action may be taken by any
Subsidiary of the Company with respect to the Securities if
the Company would be prohibited by this Article XIII from
taking such action.
SECTION 13.15. Rescission. The provisions of
this Article XIII shall continue to be effective or be
reinstated, as the case may be, if at any time any payment
in respect of any of the Senior Debt is rescinded or must
otherwise be returned by the holder thereof upon the
insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
SECTION 13.16. Payment. For purposes of this
Article XIII, "payment in full" of Senior Debt shall mean
prior payment in full (including payment of reimbursement
obligations under letters of credit) of such Senior Debt
(including all interest accruing after the commencement of
any bankruptcy or similar proceeding, whether or not a claim
for post-petition interest is allowed as a claim in any such
proceeding) in cash or other immediately available funds and
termination, cash collateralization or replacement of
contingent obligations (including all letters of credit
issued thereunder but excluding only any unasserted
indemnity obligations) and termination of all commitments
thereunder.
ARTICLE XIV
Repurchase of Securities at the Option of the
Holder upon a Change in Control
SECTION 14.01. Right to Require Repurchase. In
the event that a Change in Control (as hereinafter defined)
shall occur, then each Holder shall have the right, at the
Holder's option, to require the Company to repurchase, and
upon the exercise of such right the Company shall
repurchase, all of such Holder's Securities, or any portion
of the principal amount thereof that is equal to U.S. $1,000
or any integral multiple of U.S. $1,000 in excess thereof,
on the date (the "Repurchase Date") that is 45 days after
the date of the Company Notice (as defined in Section 14.02)
at a purchase price equal to 100% of the principal amount of
the Securities to be repurchased (the "Repurchase Price")
plus interest accrued to the Repurchase Date; provided,
however, that installments of interest on Securities whose
Stated Maturity is on or prior to the Repurchase Date shall
be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant
Record Date according to their terms and the provisions of
Section 3.07. Such right to require the repurchase of the
Securities shall not continue after a discharge of the
Company from its obligations with respect to the Securities
in accordance with Article IV, unless a Change in Control
shall have occurred prior to such discharge. At the option
of the Company, the Repurchase Price may be paid in cash or,
except as otherwise provided in Section 14.02(j), by
delivery of shares of Common Stock having a fair market
value equal to the Repurchase Price; provided that payment
may not be made in Common Stock unless at the time of
payment such stock is listed on a national securities
exchange or quoted on the Nasdaq National Market. For
purposes of this Section, the fair market value of shares of
Common Stock shall be determined by the Company and shall be
equal to 95% of the average of the Closing Prices Per Share
for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the
Repurchase Date. Whenever in this Indenture there is a
reference, in any context, to the principal of any Security
as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such
Security to the extent that such Repurchase Price is, was or
would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Indenture shall
not be construed as excluding the Repurchase Price in those
provisions of this Indenture when such express mention is
not made.
SECTION 14.02. Notices; Method of Exercising
Repurchase Right, Etc. (a) Unless the Company shall have
theretofore called for redemption all of the Outstanding
Securities, on or before the 30th day after the occurrence
of a Change in Control, the Company or, at the request and
expense of the Company, the Trustee, shall give to all
Holders of Securities, in the manner provided in
Section 1.05, notice (the "Company Notice") of the
occurrence of the Change in Control and of the repurchase
right set forth herein arising as a result thereof. The
Company shall also deliver a copy of such notice of a
repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(i) the Repurchase Date,
(ii) the date by which the repurchase right must be
exercised,
(iii) the Repurchase Price,
(iv) a description of the procedure which a Holder
must follow to exercise a repurchase right, and the
place or places where such Securities are to be
surrendered for payment of the Repurchase Price and
accrued interest, if any,
(v) that on the Repurchase Date the Repurchase
Price, and accrued interest, if any, will become due
and payable upon each such Security designated by the
Holder to be repurchased, and that interest thereon
shall cease to accrue on and after said date,
(vi) the Conversion Rate then in effect, the date
on which the right to convert the principal amount of
the Securities to be repurchased will terminate and the
place or places where such Securities may be
surrendered for conversion, and
(vii) the place or places that the certificate
required by Section 2.03 shall be delivered, and the
form of such certificate.
In addition, at least two Business Days preceding
the Repurchase Date, the Company shall give to all Holders
of the Securities, in the manner provided in Section 1.05,
notice specifying whether the Repurchase Price will be
payable in cash or Common Stock and shall deliver a copy of
such notice to the Trustee.
No failure of the Company to give the foregoing
notices or defect therein shall limit any Holder's right to
exercise a repurchase right or affect the validity of the
proceedings for the repurchase of Securities.
If any of the foregoing provisions or other
provisions of this Article are inconsistent with applicable
law, such law shall govern.
(b) To exercise a repurchase right, a Holder
shall deliver to the Trustee or any Paying Agent on or
before the 30th day after the date of the Company Notice (i)
written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal
amount of the Securities to be repurchased (and, if any
Security is to repurchased in part, the serial number
thereof, the portion of the principal amount thereof to be
repurchased and the name of the Person in which the portion
thereof to remain Outstanding after such repurchase is to be
registered) and a statement that an election to exercise the
repurchase right is being made thereby, and, in the event
that the Repurchase Price shall be paid in Common Stock, the
name or names (with addresses) in which the certificate or
certificates for Common Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is
being exercised. Such written notice shall be irrevocable,
except that the right of the Holder to convert the
Securities with respect to which the repurchase right is
being exercised shall continue until the close of business
on the Repurchase Date.
(c) In the event a repurchase right shall be
exercised in accordance with the terms hereof, the Company
shall pay or cause to be paid to the Trustee or the Paying
Agent the Repurchase Price in cash or Common Stock, as
provided above, for payment to the Holder on the Repurchase
Date or, if Common Stock are to be paid, as promptly after
the Repurchase Date as practicable, together with accrued
and unpaid interest to the Repurchase Date payable with
respect to the Securities as to which the purchase right has
been exercised; provided, however, that installments of
interest that mature on or prior to the Repurchase Date
shall be payable in cash, in the case of Securities, to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on
the relevant Regular Record Date, in each case according to
the terms and provisions of Article III.
(d) If any Security (or portion thereof)
surrendered for repurchase shall not be so paid on the
Repurchase Date, the principal amount of such Security (or
portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the
Repurchase Date at the rate of 5.25% per annum, and each
Security shall remain convertible into Common Stock until
the principal of such Security (or portion thereof, as the
case may be) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only
in part shall be surrendered to the Trustee (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security
without service charge, a new Security or Securities,
containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal
to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.
(f) Any issuance of Common Stock in respect of
the Repurchase Price shall be deemed to have been effected
immediately prior to the close of business on the Repurchase
Date and the Person or Persons in whose name or names any
certificate or certificates for Common Stock shall be
issuable upon such repurchase shall be deemed to have become
on the Repurchase Date the holder or holders of record of
the shares represented thereby; provided, however, that any
surrender for repurchase on a date when the stock transfer
books of the Company shall be closed shall constitute the
Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued as the
recordholder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such
stock transfer books are open. No payment or adjustment
shall be made for dividends or distributions on any Common
Stock issued upon repurchase of any Security declared prior
to the Repurchase Date.
(g) No fractions of shares shall be issued upon
repurchase of Securities. If more than one Security shall
be repurchased from the same Holder and the Repurchase Price
shall be payable in Common Stock, the number of full shares
which shall be issuable upon such repurchase shall be
computed on the basis of the aggregate principal amount of
the Securities so repurchased. Instead of any fractional
Common Share which would otherwise be issuable on the
repurchase of any Security or Securities, the Company will
deliver to the applicable Holder its check for the current
market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying
the current market price of a full share by the fraction,
and rounding the result to the nearest cent. For purposes
of this Section, the current market price of a Common Share
is the Closing Price Per Share of the Common Stock on the
last Trading Day prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for
Common Stock on repurchase of Securities shall be made
without charge to the Holder of Securities being repurchased
for such certificates or for any tax or duty in respect of
the issuance or delivery of such certificates or the
securities represented thereby; provided, however, that the
Company shall not be required to pay any tax or duty which
may be payable in respect of (i) income of the Holder or
(ii) any transfer involved in the issuance or delivery of
certificates for Common Stock in a name other than that of
the Holder of the Securities being repurchased, and no such
issuance or delivery shall be made unless and until the
Person requesting such issuance or delivery has paid to the
Company the amount of any such tax or duty or has
established, to the satisfaction of the Company, that such
tax or duty has been paid.
(i) If any Common Stock to be issued upon
repurchase of Securities hereunder require registration with
or approval of any governmental authority under any federal
or state law before such shares may be validly issued or
delivered upon repurchase, the Company covenants that it
will in good faith and as expeditiously as possible endeavor
to secure such registration or approval, as the case may be;
provided, however, that nothing in this Section shall be
deemed to affect in any way the obligations of the Company
to repurchase Securities as provided in this Article and if
such registration is not completed or does not become
effective or such approval is not obtained prior to the
Repurchase Date, the Repurchase Price shall be paid in cash.
(j) The Company covenants that all Common Stock
which may be issued upon repurchase of Securities will upon
issue be duly and validly issued and fully paid and
nonassessable.
SECTION 14.03. Certain Definitions. For purposes
of this Article XIV:
(a) the term "beneficial owner" shall be
determined in accordance with Rule 13d-3, as in effect
on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to
the Exchange Act;
(b) a "Change in Control" shall be deemed to have
occurred at the time, after the original issuance of
the Securities, of:
(i) the acquisition by any Person of
beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition
transaction or series of transactions, of shares
of capital stock of the Company entitling such
Person to exercise 50% or more of the total voting
power of all shares of capital stock of the
Company entitled to vote generally in the
elections of directors (any shares of voting stock
of which such person or group is the beneficial
owner that are not then outstanding being deemed
outstanding for purposes of calculating such
percentage) other than any such acquisition by the
Company, any Subsidiary of the Company or any
employee benefit plan of the Company; or
(ii) any consolidation of the Company with, or
merger of the Company into, any other Person, any
merger of another Person into the Company, or any
sale or transfer of all or substantially all of
the assets of the Company to another Person (other
than (a) any such transaction (x) which does not
result in any reclassification, conversion,
exchange or cancelation of outstanding Common
Stock and (y) pursuant to which holders of Common
Stock immediately prior to such transaction have
the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power
of all shares of capital stock entitled to vote
generally in the election of directors of the
continuing or surviving person immediately after
such transaction and (b) any merger which is
effected solely to change the jurisdiction of
incorporation of the Company and results in a
reclassification, conversion or exchange of
outstanding shares of Common Stock into solely
shares of common stock);
provided, however, that a Change in Control shall not
be deemed to have occurred if either (x) the Closing
Price Per Share of the Common Stock for any five
Trading Days within the period of 10 consecutive
Trading Days ending immediately after the later of the
date of the Change in Control or the date of the public
announcement of the Change in Control (in the case of a
Change in Control under clause (i) above) or the period
of 10 consecutive Trading Days ending immediately prior
to the date of the Change in Control (in the case of a
Change in Control under clause (ii) above) shall equal
or exceed 105% of the Conversion Price in effect on
such trading day or (y) all of the consideration
(excluding cash payments for fractional shares) to be
paid for the Common Stock in a transaction or
transactions constituting the Change in Control as
described in clause (ii) above consists of shares of
common stock traded on a national securities exchange
or quoted on the Nasdaq National Market and as a result
of such transaction or transactions the Securities
become convertible solely into such common stock; and
(c) the term "Person" shall include any syndicate
or group which would be deemed to be a "person" under
Section 13(d)(3) of the Exchange Act, as in effect on
the date of the original execution of this Indenture.
______________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
RITE AID CORPORATION,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and General Counsel
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇ Trust and Savings Bank,
not in its individual capacity
but solely as Trustee,
by /s/ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
STATE OF )
) ss.:
COUNTY OF )
On the day of , 1997, before me
personally came to me known, who, being
by me duly sworn, did depose and say that he is
of Rite Aid Corporation, one of the
corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he/she signed his
name thereto by like authority.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the day of , 1997, before me
personally came , to me known, who, being
by me duly sworn, did depose and say that he/she is
of ▇▇▇▇▇▇ Trust and Savings Bank, one of
the corporations described in and which executed the
foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he/she
signed his name thereto by like authority.
Notary Public
[Notarial Seal]
ANNEX A
FORM OF CONVERSION NOTICE
[Notice pursuant to Section 12.02 of the Indenture]
[ ],
as Conversion Agent
[ ]
New York, New York [ ]
Re Rite Aid Corporation
5.25% Convertible Subordinated Notes
due September 15, 2002 (the "Securities")
Reference is hereby made to the Indenture, dated
as of September 10, 1997 (the "Indenture"), between Rite Aid
Corporation, as Issuer, and ▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to the Securities specified
below, which are registered in the name of the undersigned
(the "Holder"). The Holder hereby irrevocably exercises its
right to convert such Securities, or the portion thereof, if
any, specified below, into Common Shares and, except to the
extent specified or required as described below, directs
that certificates representing such Common Shares, together
with any check in payment for a fractional share and any
Security representing any unconverted principal amount, be
issued and delivered through the facilities of the U.S.
Depository, for credit to the account(s) of the Person(s)
indicated below.
The Holder acknowledges and agrees that no Common
Stock will be delivered upon conversion of the specified
Securities during the Non-Conversion Period and no
Common Shares will be delivered on conversion until any
amount payable by the Holder on account of interest is paid,
any certificates evidencing specified Securities not held in
book-entry form are duly endorsed or assigned to the Company
or in blank and surrendered and any taxes or other charges
or documents required in connection with a transfer on
conversion, and any other required items, are delivered to
the Conversion Agent.
The Holder acknowledges and agrees that,
notwithstanding this request for conversion, the Company may
require that the Common Shares delivered on conversion of
the specified Securities be delivered in certificated form
subject to a restrictive legend, or that additional
certifications be delivered on behalf of the relevant
beneficial owner(s), if it determines that doing so is
necessary to comply with the requirements of the Securities
Act or otherwise, as provided in the Indenture.
Conversion of the specified Securities is subject
to the requirements established by the Company as well as to
the procedures of the U.S. Depository, all as in effect from
time to time. The specified Securities will be deemed to
have been converted as of the close of business on the first
day on which this conversion notice and all other required
items have been delivered to the Conversion Agent as
provided above and, upon such conversion, shall cease to
accrue interest or be Outstanding (subject to the Holder's
right to receive the Conversion Securities as provided in
the Indenture). Prior to such conversion, the Holder will
have no rights in the Conversion Securities.
Please provide the information requested below, as
applicable.
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION
THEREOF TO BE CONVERTED:
Principal amount held: U.S. $
CUSIP number(s):
U.S. Depository (DTC) account where held:
Principal amount being converted (if less than all):
U.S. $
2. UNLESS AND TO THE EXTENT OTHERWISE SPECIFIED BELOW, all
Securities (together with any unconverted Securities)
will be delivered in book-entry form to the DTC account
specified in Item 1 above.
3. IF OTHER ARRANGEMENTS ARE DESIRED, please specify the
type, number and form of securities to be delivered on
conversion and the name(s) of the account holder(s) or
registered owner(s), by checking the appropriate boxes
and providing the information requested:
( ) Common Shares
( ) Book-Entry
Number of Common Shares:
DTC Account:
( ) Certificates
Number of Common Shares:
Registered Owner:
( ) Unconverted Securities
( ) Certificates
Principal Amount: U.S. $ *
Registered Owner:
( ) Book-Entry
Principal Amount: U.S. $
* Aggregate principal amount of each certificate must
equal U.S. $1,000 or any amount in excess thereof in
integral multiples of U.S. $1,000.
DTC Account:
Please sign and date this notice in the space
provided below.
DATE:
Name of Holder
Signature(s) of Holder
Title(s):
(If the Holder is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
the Holder must be stated.)
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in the Securities Transfer Agents Medallion
Program (STAMP), the Stock Exchange Medallion Program (SEMP)
and the New York Stock Exchange Medallion Signature Program
(MSP) or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution
for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934.
Signature Guarantee
ANNEX B
FORM OF TRANSFER CERTIFICATE--
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Section 3.05(b)(2)
of the Indenture)
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re Rite Aid Corporation
5.25% Convertible Subordinated Notes
due September 15, 2002 (the "Securities")
Reference is hereby made to the Indenture, dated
as of September 10, 1997 (the "Indenture"), between Rite Aid
Corporation, as Issuer, and ▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to U.S. $ aggregate
principal amount of Securities which are evidenced by the
Restricted Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held
with the U.S. Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the
form of an equal aggregate principal amount of Securities
evidenced by the Regulation S Global Security (CUSIP
No. ) which amount, in the case of transfers during
the Restricted Period, immediately after such transfer, is
to be held with the U.S. Depository through Euroclear or
CEDEL or both.
In connection with such request and in respect of
such Securities, the Transferor does hereby certify that
such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"),
and accordingly the Transferor does hereby further certify
that:
(a) the offer of the Securities was not made to a
person in the United States;
(b) either:
(i) at the time the buy order was originated,
the transferee was outside the United States or
the Transferor and any person acting on its behalf
reasonably believed that the transferee was
outside the United States, or
(ii) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor
any person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
(c) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act; and
(e) upon completion of the transaction, the
beneficial interest being transferred as described
above was held with the U.S. Depository through
Euroclear or CEDEL or both.
This certificate and the statements contained
herein are made for the benefit of the Company and the
Initial Purchasers. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated:
[INSERT NAME OF TRANSFERROR],
by
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the
Person signing on behalf of
such registered owner must be
stated.)
ANNEX C
FORM OF TRANSFER CERTIFICATE--
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY DURING THE
RESTRICTED PERIOD
(Transfers pursuant to Section 3.05(b)(3)
of the Indenture)
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re Rite Aid Corporation
5.25% Convertible Subordinated Notes
due September 15, 2002 (the
"Securities")
Reference is hereby made to the Indenture, dated
as of September 10, 1997 (the "Indenture"), between Rite Aid
Corporation, as Issuer, and ▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to U.S. $ aggregate
principal amount of Securities which are evidenced by the
Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held
with the U.S. Depository through Euroclear or CEDEL or both
in the name of [insert name of transferor] (the
"Transferor") during the Restricted Period. The Transferor
has requested a transfer of such beneficial interest in the
Securities to a Person that will take delivery thereof in
the form of an equal principal amount of Securities
evidenced by the Restricted Global Security (CUSIP
No. ).
In connection with such request and in respect of
such Securities, the Transferor does hereby certify that
such transfer has been effected pursuant to and in
accordance with Rule 144A under the United States Securities
Act of 1933, as amended, and accordingly the Transferor does
hereby further certify that the Securities are being
transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person
and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A.
This certificate and the statements contained
herein are made for the benefit of the Company and the
Initial Purchaser.
Dated:
[INSERT NAME OF TRANSFERROR],
by
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the
Person signing on behalf of
such registered owner must be
stated.)