EXHIBIT 4.1
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VECTOR GROUP LTD.
AS ISSUER
AND
XXXXX FARGO BANK, N.A.
AS TRUSTEE
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INDENTURE
DATED AS OF NOVEMBER 18, 2004
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5% VARIABLE INTEREST SENIOR CONVERTIBLE NOTES DUE 2011
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY...........................................................................................1
ARTICLE I Definitions and Other Provisions of General Application.................................................1
Section 1.01. Definitions.................................................................................1
Section 1.02. Compliance Certificates and Opinions.......................................................12
Section 1.03. Form of Documents Delivered to Trustee.....................................................12
Section 1.04. Acts of Holders; Record Dates..............................................................13
Section 1.05. Notices, Etc., to Trustee and Company......................................................14
Section 1.06. Notice to Holders; Waiver..................................................................14
Section 1.07. Conflict with Trust Indenture Act..........................................................14
Section 1.08. Effect of Headings and Table of Contents...................................................15
Section 1.09. Successors and Assigns.....................................................................15
Section 1.10. Severability Clause........................................................................15
Section 1.11. Benefits of Indenture......................................................................15
Section 1.12. Governing Law..............................................................................15
Section 1.13. Legal Holidays.............................................................................15
ARTICLE II [RESERVED]............................................................................................15
ARTICLE III The Securities.......................................................................................15
Section 3.01. Forms Generally............................................................................15
Section 3.02. Legend on Restricted Securities............................................................16
Section 3.03. Title and Terms............................................................................16
Section 3.04. Denominations..............................................................................17
Section 3.05. Execution, Authentication, Delivery and Dating.............................................17
Section 3.06. Temporary Securities.......................................................................17
Section 3.07. Registration; Registration of Transfer and Exchange; Restrictions on
Transfer...................................................................................18
Section 3.08. Mutilated, Destroyed, Lost and Stolen Securities...........................................19
Section 3.09. Persons Deemed Owners......................................................................20
Section 3.10. Book-Entry Provisions for Global Securities................................................20
Section 3.11. Cancellation and Transfer Provisions.......................................................22
Section 3.12. CUSIP Numbers..............................................................................23
ARTICLE IV Satisfaction And Discharge............................................................................24
Section 4.01. Satisfaction and Discharge of Indenture....................................................24
Section 4.02. Application of Trust Money.................................................................24
ARTICLE V Remedies...............................................................................................24
Section 5.01. Events of Default..........................................................................24
Section 5.02. Acceleration of Maturity; Rescission and Annulment.........................................26
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................27
Section 5.04. Trustee May File Proofs of Claim...........................................................27
Section 5.05. Application of Money Collected.............................................................28
Section 5.06. Limitation on Suits........................................................................28
Section 5.07. Unconditional Right of Holders to Receive Payment..........................................29
Section 5.08. Restoration of Rights and Remedies.........................................................29
Section 5.09. Rights and Remedies Cumulative.............................................................29
Section 5.10. Delay or Omission Not Waiver...............................................................29
Section 5.11. Control by Holders.........................................................................30
Section 5.12. Waiver of Past Defaults....................................................................30
Section 5.13. Undertaking for Costs......................................................................30
Section 5.14. Waiver of Stay or Extension Laws...........................................................30
ARTICLE VI The Trustee...........................................................................................31
Section 6.01. Certain Duties and Responsibilities........................................................31
Section 6.02. Notice of Defaults.........................................................................32
Section 6.03. Certain Rights Of Trustee..................................................................32
Section 6.04. Not Responsible for Recitals...............................................................34
Section 6.05. May Hold Securities........................................................................34
Section 6.06. Money Held in Trust........................................................................34
Section 6.07. Compensation and Indemnity.................................................................34
Section 6.08. Disqualification; Conflicting Interests....................................................35
Section 6.09. Corporate Trustee Required; Eligibility....................................................35
Section 6.10. Resignation and Removal; Appointment of Successor..........................................36
Section 6.11. Acceptance of Appointment by Successor.....................................................37
Section 6.12. Merger, Conversion, Consolidation or Succession to Business................................37
Section 6.13. Preferential Collection of Claims Against..................................................37
ARTICLE VII Holders' Lists And Reports By Trustee................................................................38
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders..................................38
Section 7.02. Preservation of Information; Communications to Holders.....................................38
Section 7.03. Reports By Trustee.........................................................................38
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer Or Lease................................................39
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.......................................39
Section 8.02. Successor Substituted......................................................................39
ARTICLE IX Supplemental Indentures...............................................................................40
Section 9.01. Supplemental Indentures Without Consent of Holders.........................................40
Section 9.02. Supplemental Indentures With Consent of Holders............................................41
Section 9.03. Execution of Supplemental Indentures.......................................................42
Section 9.04. Effect of Supplemental Indentures..........................................................42
Section 9.05. Conformity with Trust Indenture Act........................................................42
Section 9.06. Reference in Securities to Supplemental Indentures.........................................42
ARTICLE X Covenants..............................................................................................43
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Section 10.01. Payments...................................................................................43
Section 10.02. Maintenance of Office or Agency............................................................43
Section 10.03. Money for Security Payments to be Held in Trust............................................43
Section 10.04. Statement by Officers as to Default........................................................44
Section 10.05. Existence..................................................................................45
Section 10.06. Further Instruments and Acts...............................................................45
Section 10.07. Reports and Delivery of Certain Information................................................45
Section 10.08. Resale of Certain Securities...............................................................46
Section 10.09. Book-Entry System..........................................................................46
Section 10.10. Registration Default Payments Under the Registration Rights Agreement......................46
Section 10.11. Information for IRS Filings................................................................46
ARTICLE XI Redemption Prior to Maturity; Repurchase Upon A Fundamental Change....................................47
Section 11.01. Right to Require Redemption................................................................47
Section 11.02. Notice of Right to Require Redemption......................................................47
Section 11.03. Redemption by Holder.......................................................................48
Section 11.04. Deposit of Redemption Price................................................................49
Section 11.05. Securities Redeemed in Part................................................................49
Section 11.06. Repurchase of Securities at Option of the Holder Upon Fundamental Change...................49
Section 11.07. Effect of Fundamental Change Repurchase Notice.............................................52
Section 11.08. Securities Repurchased in Whole or in Part.................................................53
Section 11.09. Covenant to Comply With Securities Laws Upon Repurchase of Securities......................53
Section 11.10. Deposit of Fundamental Change Repurchase Price.............................................53
Section 11.11. Repayment to the Company...................................................................53
ARTICLE XII Interest Payments on the Securities..................................................................54
Section 12.01. Interest Rate..............................................................................54
ARTICLE XIII Conversion..........................................................................................55
Section 13.01. Conversion Privilege.......................................................................55
Section 13.02. Conversion Procedure.......................................................................55
Section 13.03. No Fractional Shares.......................................................................58
Section 13.04. Taxes on Conversion........................................................................58
Section 13.05. Company to Provide Stock...................................................................58
Section 13.06. Adjustment of Conversion Price.............................................................59
Section 13.07. No Adjustment..............................................................................63
Section 13.08. Notice of Conversion Price Adjustment......................................................64
Section 13.09. Notice of Certain Transactions.............................................................64
Section 13.10. Effect of Reclassification on Conversion Privilege.........................................64
Section 13.11. Trustee's Disclaimer.......................................................................64
Section 13.12. Voluntary Decrease.........................................................................65
Section 13.13. Company Determination Final................................................................65
ARTICLE XIV Make-Whole Premium...................................................................................65
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Section 14.01. Make-Whole Premium.........................................................................65
Section 14.02. Payment of Make-Whole Premium..............................................................70
Section 14.03. Adjustment to the Make-Whole Premium.......................................................70
EXHIBITS:
Exhibit A Form of Face of Security
Exhibit B Form of Reverse of Security
Exhibit C Form of Trustee's Certificate of Authentication
Exhibit D Fundamental Change Repurchase Notice
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INDENTURE, dated as of November 18, 2004, between Vector Group
Ltd., a corporation duly organized and existing under the laws of the State of
Delaware, as Issuer (the "COMPANY"), having its principal office at 000 X.X.
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, and Xxxxx Fargo Bank N.A., a national
banking association, as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5% Variable Interest Senior Convertible Notes Due 2011 (each, a "SECURITY"
and collectively, 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.
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 and legally binding obligations of the Company, and to make
this Indenture a valid and legally binding agreement of the Company, in
accordance with the terms of the Securities and the Indenture, have been done.
Further, all things necessary to duly authorize the issuance of the Common Stock
of the Company issuable upon the conversion of the Securities, and to duly
reserve for issuance the number of shares of Common Stock issuable upon such
conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed, for the benefit of
the Company and 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 and not otherwise
defined that are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP; and
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
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"ACT," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"ADDITIONAL INVESTMENT RIGHTS" means the additional investment
rights which will be exercisable to purchase up to $16,375,000 in principal
amount of the Securities.
"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 3.08.
"BLOOMBERG" means Bloomberg Financial Markets (or any
successor thereto).
"BOARD OF DIRECTORS" means, with respect to any Person, either
the board of directors of such Person or any committee of that board duly
authorized to take the subject action.
"BOARD RESOLUTION" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which banking institutions in The City of New York or the city in
which the Corporate Trust Office is located are authorized or obligated by law,
or executive order or governmental decree to be closed.
"BUY-IN" has the meaning specified in Section 13.02(c).
"BUY-IN PRICE" has the meaning specified in Section 13.02(c).
"CALCULATION AGENT" has the meaning specified in Section
14.01(c).
"CAPITAL STOCK" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, including, without limitation, with respect to partnerships, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"CHANGE OF CONTROL EVENT" means the occurrence, after the
Original Issue Date, of one or more of the following events:
(1) any sale, transfer, lease, conveyance or other disposition
(in one transaction or a series of related transactions) of all or substantially
all of the Company's property or assets
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to any Person or group of related Persons (other than to any of the Company's
wholly owned Subsidiaries) as defined in Sections 13(d) and 14(d) of the
Exchange Act, including any group acting for the purpose of acquiring, holding,
voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act, other than any sale, transfer, lease, conveyance or other
disposition in which (x) Persons who, directly or indirectly, are beneficial
owners (as defined in Rule 13d-3 under the Exchange Act) of the Company's Voting
Stock immediately prior to such transaction, beneficially own, directly or
indirectly, immediately after such transaction at least a majority of the total
voting power of the outstanding Voting Stock of the corporation or entity
purchasing such properties or assets in such sale, lease, conveyance or other
disposition and (y) Persons who, directly or indirectly, are beneficial owners
of the Company's Voting Stock immediately prior to such transaction,
beneficially own, directly or indirectly, immediately after such transaction
shares of common stock of the corporation or entity purchasing such properties
or assets in such sale, lease, conveyance or other disposition in a proportion
that does not, on the whole, materially differ from such ownership immediately
prior to the transaction;
(2) the approval by the holders of the Company's Capital Stock
of any plan or proposal for liquidation or dissolution;
(3) if any "person" or "group" (as these terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act) (other than Xxxxxxx X.
XxXxx and the XxXxx Persons) is or shall become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of
the aggregate ordinary voting power represented by issued and outstanding Voting
Stock of the Company;
(4) if at any time Xxxxxxx X. XxXxx and/or any XxXxx Person is
or shall become the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act,) either individually or collectively, directly or indirectly, of
65% of the aggregate ordinary voting power represented by issued and outstanding
Voting Stock of the Company; or
(5) the Company consolidates with, or merges with or into,
another Person or any Person consolidates with, or merges with or into, the
Company, other than any consolidation or merger in which (x) Persons who,
directly or indirectly, are beneficial owners (as defined in Rule 13d-3 under
the Exchange Act) of the Company's Voting Stock immediately prior to such
transaction, beneficially own, directly or indirectly, immediately after such
transaction at least a majority of the total voting power of the outstanding
Voting Stock of the continuing or surviving corporation or entity and (y)
Persons who, directly or indirectly, are beneficial owners of the Company's
Voting Stock immediately prior to such transaction, beneficially own, directly
or indirectly, immediately after such transaction shares of common stock of the
continuing or surviving corporation or entity in a proportion that does not, on
the whole, materially differ from such ownership immediately prior to the
transaction.
Notwithstanding the foregoing, a merger or consolidation shall not be deemed to
constitute a "Change of Control Event" if (i) at least 90% of the consideration
(excluding cash payments for fractional shares or pursuant to statutory
appraisal rights) in such merger or consolidation consists of shares of Capital
Stock that are, or immediately after the transaction or event will be, traded on
a national securities exchange in the United States or quoted on the Nasdaq
National
3
Market or The Nasdaq SmallCap Market (or which shall be so traded or quoted when
issued or exchanged in connection with such merger or consolidation) (these
securities being referred to as "publicly traded securities") and (ii) as a
result of such merger or consolidation the Securities become convertible into
such publicly traded securities, excluding cash payments for fractional shares.
"CLOSING PRICE" means, for any security as of any date: (i)
the last closing trade price for such security on the principal United States
securities exchange or trading market (which, with respect to the Common Stock
on the Original Issue Date, is the NYSE) on such date as reported by Bloomberg,
(ii) if such securities exchange or trading market begins to operate on an
extended hours basis and does not designate the closing trade price, then the
last trade price for such security prior to 4:00:00 p.m. New York time, as
reported by Bloomberg, (iii) if the foregoing do not apply, the last trade price
of such security in the over-the-counter market on the electronic bulletin board
for such security as reported by Bloomberg, (iv) if no last trade price is
reported for such security by Bloomberg, the average of the highest bid prices
and the lowest ask prices of any market makers for such security in the "pink
sheets" by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If
the Closing Price cannot be calculated for a security on a particular date on
any of the foregoing bases, the Closing Price of such security on such date
shall be the fair market value as mutually determined by the Company and the
Majority Holders.
"CLOSING PRICE PER SHARE" means, with respect to the Common
Stock, for any day, the Closing Price per share of Common Stock.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMISSION" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMMON STOCK" means the shares of Common Stock, par value
$0.10 per share, of the Company as it exists on the Original Issue Date or any
other shares of Capital Stock of the Company into which the Common Stock shall
be reclassified or changed or, in the event of a merger, consolidation or other
similar transaction involving the Company that is otherwise permitted hereunder
in which the Company is not the surviving corporation, the common stock, common
equity interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its direct
or indirect parent corporation.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or any Vice President, and by its
Chief Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
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"CONVERSION AGENT" means the Trustee or such other office or
agency designated by the Company with notice provided to the Holders where
Securities may be presented for conversion.
"CONVERSION DATE" has the meaning specified in Section
13.02(a).
"CONVERSION LIMITATION" has the meaning specified in Section
13.02(i).
"CONVERSION PRICE" means, as of any Conversion Date (as
defined below) or other date of determination, $19.57, subject to adjustment as
provided herein.
"CONVERSION RATE" has the meaning specified in Section
13.01(c).
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the Original Issue Date,
located at Sixth & Marquette; X0000-000, Xxxxxxxxxxx, XX 00000; Attn: Corporate
Trust Services.
"CORPORATION" means a corporation, association, company,
joint-stock company or business trust.
"CURRENT MARKET PRICE" has the meaning specified in Section
13.06(e).
"DEFAULT" means any event that is or with the passage of time
or the giving of notice or both would become an Event of Default.
"DEPOSITARY" means The Depository Trust Company until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean such
successor Depositary.
"EFFECTIVE DATE" has the meaning specified in Section
14.01(b).
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended.
"EXPIRATION DATE" has the meaning specified in Section
13.06(d).
"EXPIRATION TIME" has the meaning specified in Section
13.06(d).
"FUNDAMENTAL CHANGE" means any transaction or event resulting
in either a Change of Control Event or a Termination of Trading.
"FUNDAMENTAL CHANGE COMPANY NOTICE" has the meaning specified
in Section 11.06(b).
"FUNDAMENTAL CHANGE CONVERSION" has the meaning specified in
Section 13.02.
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"FUNDAMENTAL CHANGE CONVERSION/REPURCHASE PERIOD" means the
period beginning upon receipt of the Fundamental Change Company Notice and
ending ten (10) Trading Days after the Effective Date.
"FUNDAMENTAL CHANGE REPURCHASE" has the meaning specified in
Section 11.06(a).
"FUNDAMENTAL CHANGE REPURCHASE NOTICE" has the meaning
specified in Section 11.06(c).
"FUNDAMENTAL CHANGE REPURCHASE PRICE" has the meaning
specified in the Section 11.06(a).
"FUNDAMENTAL CHANGE SETTLEMENT DATE" means the Effective Date
for a Fundamental Change. With respect to any Fundamental Change Conversion or
Fundamental Change Repurchase for which a Notice of Conversion or Fundamental
Change Repurchase Notice, as applicable, has been delivered after the Effective
Date (and during the Fundamental Change Conversion/Repurchase Period), the
Fundamental Change Settlement Date shall mean the date that is three (3)
Business Days following the end of the Fundamental Change Conversion/Repurchase
Period.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession.
"GLOBAL SECURITY" means a Security in global form registered
in the Security Register in the name of a Depositary or a nominee thereof.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a
Security is registered in the Security Register.
"INDEMNIFIED PARTY" has the meaning specified in Section 6.07.
"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 provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"INITIAL PURCHASERS" means Highbridge International LLC,
Jefferies Paragon Master Fund, Ltd., Basso Capital, Camden Asset Management, EBF
& Associates, LP, Canyon Partners Inc. and Xxxxxxxx Investment
Management.
"INTEREST PAYMENT DATE" means (i) each February 15, May 15,
August 15 and November 15 and ending on the Maturity Date, commencing February
15, 2005 and (ii) the Maturity Date.
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"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended from time to
time.
"ISSUE DATE" means the date the Securities are originally
issued as set forth on the face of the Security under this Indenture.
"XXXXX PERSONS" means the immediate family of Xxxxxxx X. XxXxx
and any "person" or "group" under Section 13(d)(3) of the Exchange Act that is
controlled by solely by Xxxxxxx X. XxXxx or his immediate family, any
beneficiary of the estate of Xxxxxxx X. XxXxx or his immediate family or any
trust or partnership controlled by any of the foregoing.
"MAJORITY HOLDERS" means the Holders of a majority in
aggregate Principal Amount of the Outstanding Securities.
"MAKE-WHOLE CONVERSION PRICE" has the meaning specified in
Section 14.01(b).
"MAKE-WHOLE PREMIUM" has the meaning specified in Section
14.01(b).
"MAKE-WHOLE PREMIUM TABLE" has the meaning specified in
Section 14.01(b).
"MATURITY DATE," when used with respect to any Security, means
the date on which the principal, the Redemption Price or the Fundamental Change
Repurchase Price (plus any Make-Whole Premium required by the terms hereof) of
such Security becomes due and payable as therein or herein provided, whether at
the Stated Maturity, on the Redemption Date or a Fundamental Change Repurchase
Date, or by declaration of acceleration or otherwise.
"MAXIMUM ACCRUAL" has the meaning specified in Section
11.01(b).
"MINIMUM REDEMPTION AMOUNT" has the meaning specified in
Section 11.01(a).
"NOTICE OF CONVERSION" has the meaning specified in Section
13.02(a).
"NOTICE OF DEFAULT" has the meaning specified in Section 5.01.
"NOTICE OF REDEMPTION RIGHT" has the meaning specified in
Section 11.02.
"NYSE" means the New York Stock Exchange, Inc.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the President or any Vice President, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 10.04 shall
be the principal executive, financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be external or in-house counsel for the Company, reasonably acceptable to
the Trustee.
"ORIGINAL ISSUE DATE" means November 18, 2004.
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"OUTSTANDING" when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except: (i) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for cancellation; (ii) Securities, or
portions thereof, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) 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 prior to the
maturity thereof, notice of such redemption shall have been given to the Holders
as herein provided, or provision satisfactory to a Responsible Officer of the
Trustee shall have been made for giving such notice; and (iii) Securities that
have been paid or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture; provided, however, that,
in determining whether the Holders of the requisite Principal Amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a 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 of such other obligor.
"PAYING AGENT" means any Person (including the Company)
authorized by the Company to pay the Principal Amount of, interest and
Registration Default Payments, if any, on the Securities to the Holders,
including the Redemption Price or the Fundamental Change Repurchase Price (plus
any Make-Whole Premium required by the terms hereof) on behalf of the Company.
The Company shall initially appoint the Trustee to be the Paying Agent and the
Company shall provide written notice to the Holders of any change in the Paying
Agent hereafter.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PHYSICAL SECURITIES" means permanent certificated Securities
in registered form issued in denomination of $1,000 Principal Amount and
integral multiples thereof.
"PRINCIPAL AMOUNT" of a Security means the Principal Amount as
set forth on the face of the Security.
"PURCHASED SHARES" has the meaning specified in Section
13.06(d).
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A.
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"RECORD DATE" for the interest payable on any Interest Payment
Date means each February 1, May 1, August 1 and November 1 (whether or not a
Business Day) next preceding such Interest Payment Date.
"record date" has the meaning specified in Section 13.06(f).
"REDEMPTION DATE" means November 15, 2009.
"REDEMPTION PRICE" has the meaning specified in Section
11.01(a).
"REGISTRATION DEFAULT PAYMENTS" has the meaning specified in
the Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 16, 2004, by and among the Company and the
Initial Purchasers, for the benefit of themselves and the Holders, as the same
may be amended or modified from time to time in accordance with the terms
thereof.
"RESPONSIBLE OFFICER" means any officer of the Trustee within
the Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular matter,
any other officer of the Trustee to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"RESTRICTED GLOBAL SECURITY" means a Global Security
representing Restricted Securities.
"RESTRICTED SECURITY" or "RESTRICTED SECURITIES" has the
meaning specified in Section 3.02.
"RIGHTS PLAN" has the meaning specified in Section 13.06(c).
"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 the
Section 10.07(b).
"SECURITIES ACT" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"SECURITY" or "SECURITIES" has the meaning specified in the
first paragraph of the Recitals of the Company.
"SECURITIES PURCHASE AGREEMENT" means the Securities Purchase
Agreement, dated as of November 16, 2004, entered into by and among the Company
and the Initial Purchasers in connection with the sale of the Securities.
9
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 3.07.
"SHARE DELIVERY DATE" has the meaning specified in Section
13.02(b).
"SHELF REGISTRATION STATEMENT" means a registration statement
under the Securities Act registering the Securities and the Common Stock
issuable on conversion thereof for resale pursuant to the terms of the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" shall have the meaning ascribed to
such term in Regulation S-X under the Exchange Act.
"STOCK PRICE" has the meaning specified in Section 14.01(b).
"STOCK PRICE CAP" has the meaning specified in Section
14.01(b).
"STOCK PRICE THRESHOLD" has the meaning specified in Section
14.01(b).
"STATED MATURITY" when used with respect to any Security,
means the date specified in such Security as the fixed date on which an amount
equal to the principal amount of such Security together with accrued and unpaid
interest and Registration Default Payments, if any, is due and payable.
"SUBSIDIARY" means, with respect to any Person, (a) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of capital stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person (or a combination thereof) and (b) any partnership (i) the sole
general partner or managing general partner of which is such Person or a
subsidiary of such Person or (ii) the only general partners of which are such
Person or of one or more subsidiaries of such Person (or any combination
thereof).
"SURVIVING ENTITY" has the meaning specified in Section 8.01.
"TERMINATION OF TRADING" means that the Common Stock or other
securities into which the Securities are convertible is neither listed for
trading on a U.S. national securities exchange nor approved for trading on an
established automated over-the-counter trading market in the United States.
"TRADING DAY" means (a) if the applicable security is listed
or admitted for trading on the NYSE or another national securities exchange, a
day on which the NYSE or such other national securities exchange is open for
business, (b) if the applicable security is quoted on the Nasdaq National Market
or Nasdaq SmallCap Market, a day during which trades may be made thereon or (c)
if the applicable security is not so listed, admitted for trading or quoted, any
Business Day.
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"TRANSFER" for purposes of Section 3.07, has the meaning
specified in Section 3.07.
"TRANSFER RESTRICTED SECURITY" means a Security required to
bear the restricted legend set forth in the form of Security set forth as
Exhibit A attached hereto.
"TRIGGER EVENT" has the meaning specified in Section 13.06(c).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as in effect on the date as of which this Indenture was executed, provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"2001 INDENTURE" means the Indenture dated as of July 5, 2001
between the Company and U.S. Bank Trust National Association, as Trustee, under
which the Company's 6 1/4% Convertible Subordinated Notes due 2008 are issued
and outstanding.
"UNITED STATES" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (its "possessions" including Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands).
"VICE PRESIDENT" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"VOTING STOCK" of a Person means Capital Stock of such Person
of the class or classes pursuant to which the holders thereof have the general
voting power to elect, or the general power to appoint, at least a majority of
the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
"WEIGHTED AVERAGE PRICE" means, for any security as of any
date, (i) the dollar volume-weighted average price for such security on the
principal United States securities exchange or trading market (which, with
respect to the Common Stock on the Original Issue Date, is the NYSE) during the
period beginning at 9:30:01 a.m., New York time (or such other time as such
exchange or market publicly announces is the official open of trading), and
ending at 4:00:00 p.m., New York time (or such other time as such exchange or
market publicly announces is the official close of trading) as reported by
Bloomberg through its "Volume at Price" functions, (ii) if the foregoing does
not apply, the dollar volume-weighted average price of such security in the
over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York time (or such other time
as such market publicly announces is the official open of trading), and ending
at 4:00:00 p.m., New York time (or such other time as such market publicly
announces is the official close of trading) as reported
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by Bloomberg, or (iii) if no dollar volume-weighted average price is reported
for such security by Bloomberg for such hours, the average of the highest
closing bid price and the lowest closing ask price of any of the market makers
for such security as reported in the "pink sheets" by Pink Sheets LLC (formerly
the National Quotation Bureau, Inc.). If the Weighted Average Price cannot be
calculated for a security on a particular date on any of the foregoing bases,
the Weighted Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Majority Holders. All
such determinations to be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during the applicable
calculation period.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination or investigation as is
reasonably necessary to enable such individual to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with; provided,
however, with respect to matters of fact, an Opinion of Counsel may rely on an
Officer's Certificate or certificates of public officials.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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
12
opinion or representations with respect to the matters upon which his
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 1.04. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as an "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture 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 any other manner which the Trustee reasonably deems
sufficient.
(c) The Company may, in the circumstances permitted
by the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by
the Security Register.
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(e) 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.
Section 1.05. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office; or
(b) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, Attention: Secretary.
Section 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to 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.
Whenever under this Indenture the Trustee is required to
provide any notice by mail, in all cases the Trustee may alternatively provide
notice by overnight courier or by telefacsimile, with confirmation of
transmission.
Section 1.07. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision of the
Trust Indenture Act which is required hereunder to be a part of and govern this
Indenture, the required provision shall control.
14
Section 1.08. 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, and all Article
and Section references are to Articles and Sections, respectively, of this
Indenture unless otherwise expressly stated.
Section 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.10. Severability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.11. 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 respective successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.12. Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Stated Maturity, Redemption Date or Fundamental Change Settlement
Date of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) the payments otherwise
required to be made on such date need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
such date; provided, that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Stated Maturity,
Redemption Date or Fundamental Change Settlement Date, as the case may be.
ARTICLE II
[RESERVED]
ARTICLE III
THE SECURITIES
Section 3.01. Forms Generally. The Securities and the
Trustee's certificate of authentication shall be in substantially the forms set
forth under Exhibits A, B and C, 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 Depositary therefor, the Internal
Revenue Code of 1986, as amended, and regulations thereunder, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.
The Securities shall initially be issued in the form of
permanent Global Securities in registered form in substantially the form set
forth in this Article. The aggregate Principal
15
Amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary, as hereinafter provided.
Section 3.02. Legend on Restricted Securities. During the
period beginning on the Issue Date and ending on the date two years from such
date, any Security, including any Security issued in exchange therefor or in
lieu thereof, shall be deemed a "RESTRICTED SECURITY" and shall be subject to
the restrictions on transfer provided in the legends set forth on the face of
the form of Security attached hereto as Exhibit A; provided, however, that the
term "Restricted Security" shall not include any Securities as to which
restrictions have been terminated in accordance with Section 3.07. All
Securities shall bear the applicable legends set forth on the face of the form
of Security attached hereto as Exhibit A. Except as provided in Section 3.07 and
Section 3.11, the Trustee shall not issue any unlegended Security until it has
received an Officers' Certificate from the Company directing it to do so.
Section 3.03. Title and Terms. The aggregate Principal Amount
of Securities that may be authenticated and delivered under this Indenture is
initially limited to $65,500,000 (subject to increase by up to an additional
aggregate principal amount of $16,375,000 in the event the Initial Purchasers
exercise the Additional Investment Rights), except for Securities authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 3.06, 3.07, 3.08 or 9.06. Other than as
set forth in the preceding sentence, the Company shall not issue any Securities
under this Indenture.
The Securities shall be known and designated as the "5%
VARIABLE INTEREST SENIOR CONVERTIBLE NOTES DUE 2011" of the Company. The
Principal Amount shall be payable at the Stated Maturity, or at the election of
the Holder, at the Redemption Date.
The Principal Amount and accrued interest and Registration
Default Payments, if any, on the Securities shall be payable at the office or
agency of the Company in The City of New York maintained for such purpose and at
any other office or agency maintained by the Company for such purpose; provided,
however, that at the option of the Company payments may be made by wire transfer
or by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
The Securities shall not have the benefit of a sinking fund.
The Securities shall rank pari passu with, all other unsecured
and unsubordinated indebtedness of the Company. The Company will not incur or
issue any subordinated indebtedness unless such indebtedness is unsecured and
subordinated to the Securities on terms no less favorable than those applicable
to senior indebtedness which constitutes Designated Senior Indebtedness under
the 2001 Indenture.
The Securities shall constitute "Senior Indebtedness", and the
Company hereby designates the Securities as "Designated Senior Indebtedness", in
each case under the 2001 Indenture.
16
Section 3.04. Denominations. The Securities shall be issuable
only in registered form without coupons and in denominations of $1,000 and any
integral multiple of $1,000 above that amount.
Section 3.05. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution of the Securities 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 authentication 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. The Company Order shall specify
the amount of Securities to be authenticated, and shall further specify the
amount of such Securities to be issued as a Global Security or as Physical
Securities. The Trustee in accordance with such Company Order shall authenticate
and deliver such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
Section 3.06. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed 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
10.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
17
Section 3.07. 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 Company hereby appoints the Trustee to serve as "Security
Registrar" (the "SECURITY REGISTRAR") for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Security duly endorsed, or accompanied by a written instrument of transfer
satisfactory to the Registrar duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate Principal Amount and tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including Sections
3.01, 3.02 and 3.11).
At the option of the Holder and subject to the other
provisions of this Section 3.07 and to Section 3.11, Securities may be exchanged
for other Securities of any authorized denominations and of a like aggregate
Principal Amount and tenor, upon surrender of the Securities to be exchanged at
the Security Register. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
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 entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Except as provided in the following sentence and in
Section 3.11, all Securities originally issued hereunder and all Securities
issued upon registration of transfer or exchange or replacement thereof shall be
Restricted Securities and shall bear the legend required by Sections 3.01 and
3.02, unless the Company shall have delivered to the Trustee (and the Security
Registrar, if other than the Trustee) a Company Order and an Opinion of Counsel
stating that the Security is not a Restricted Security and may be issued without
such legend thereon. Securities which are issued upon registration of transfer
of, or in exchange for, Securities which are not Restricted Securities shall not
be Restricted Securities and shall not bear such legend.
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 3.06 not involving any transfer.
18
The Company shall not be required to exchange or
register a transfer of any Security (i) during the 15-day period immediately
preceding the mailing of any Notice of Redemption Right of any Security, (ii)
after any Notice of Redemption Right has been given by any Holders, except,
where such notice provides that such Security is to be redeemed only in part,
the Company shall be required to exchange or register a transfer of the portion
thereof not to be redeemed, (iii) that has been surrendered for conversion or
(iv) as to which a Fundamental Change Repurchase Notice has been delivered and
not withdrawn, except, where such Fundamental Change Repurchase Notice provides
that such Security is to be purchased only in part, the Company shall be
required to exchange or register a transfer of the portion thereof not to be
purchased.
(b) Beneficial ownership of every Restricted Security
shall be subject to the restrictions on Transfer provided in the legends
required to be set forth on the face of each Restricted Security pursuant to
Sections 3.01 and 3.02, unless such restrictions on Transfer shall be terminated
in accordance with this Section 3.07(b) or Section 3.11. The Holder of each
Restricted Security, by such Holder's acceptance thereof, agrees to be bound by
such restrictions on Transfer.
The restrictions imposed by this Section 3.07 and by
Sections 3.01, 3.02 and 3.11 upon the transferability of any particular
Restricted Security shall cease and terminate upon delivery by the Company to
the Trustee of an Officers' Certificate and an Opinion of Counsel stating that
such Restricted Security has been sold pursuant to an effective Shelf
Registration Statement under the Securities Act or Transferred in compliance
with Rule 144. Any Restricted Security as to which the Company has delivered to
the Trustee such Officers' Certificate and Opinion of Counsel may, upon
surrender of such Restricted Security for exchange to the Security Registrar in
accordance with the provisions of this Section 3.07, be exchanged for a new
Security, of like tenor and aggregate Principal Amount, which shall not bear the
restrictive legends required by Sections 3.01 and 3.02. The Company shall inform
the Trustee in writing of the effective date of any Shelf Registration Statement
registering the Securities under the Securities Act. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned Shelf Registration Statement.
As used in the preceding two paragraphs, the term
"Transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
(c) Neither the Trustee nor any of its agents shall
(i) have any duty to monitor compliance with or with respect to any federal or
state or other securities or tax laws or (ii) have any duty to obtain
documentation relating to any transfers or exchanges other than as specifically
required hereunder.
Section 3.08. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and Principal Amount and bearing a number
not contemporaneously outstanding.
19
If there shall be delivered to the Company and the Trustee (i)
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 the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen 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 or has been presented for
redemption in full, the Company in its discretion may, instead of issuing a new
Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Security under this Section 3.08,
the Company may require payment by the Holder 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 3.08 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 3.09. 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 may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of the principal of and interest and Registration Default
Payments, if any, 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 3.10. Book-Entry Provisions for Global Securities. (a)
The Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for the Depositary and (iii) bear legends as set forth on the face
of the form of Security in accordance with Section 3.01.
(b) Members of, or participants in, the Depositary
("AGENT MEMBERS") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any
20
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of any Holder.
(c) Transfers of the Global Securities shall be
limited to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred or exchanged, in whole or in part, for
Physical Securities in accordance with the rules and procedures of the
Depositary and the provisions of Section 3.11. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Securities if (A) such Depositary has notified the
Company (or the Company becomes aware) that the Depositary (i) is unwilling or
unable to continue as Depositary for such Global Security or (ii) has ceased to
be a clearing agency registered under the Exchange Act when the Depositary is
required to be so registered to act as such Depositary and, in either such case,
no successor Depositary shall have been appointed within 90 days of such
notification or of the Company becoming aware of such event; or (B) there shall
have occurred and be continuing an Event of Default with respect to such Global
Security and the Outstanding Securities shall have become due and payable
pursuant to Section 5.02 and the Trustee requests that Physical Securities be
issued; provided that Holders of Physical Securities offered and sold in
reliance on Rule 144A shall have the right, subject to applicable law, to
request that such Securities be exchanged for interests in the applicable Global
Security.
(d) In connection with any transfer or exchange of a
portion of the beneficial interest in the Global Security to beneficial owners
pursuant to clause (c) of this Section 3.10, the Security Registrar shall (if
one or more Physical Securities are to be issued) reflect on its books and
records the date and a decrease in the Principal Amount of the Global Security
in an amount equal to the Principal Amount of the beneficial interest in the
Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(e) In connection with the transfer of the entire
Global Security to beneficial owners pursuant to clause (c) of this Section
3.10, the Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Global Security, an equal aggregate Principal
Amount of Physical Securities of authorized denominations and the same tenor.
(f) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in the Global Security pursuant
to clause (c) or (d) of this Section 3.10 shall, except as otherwise provided by
clause (c) of Section 3.11, bear the legend regarding transfer restrictions
applicable to the Physical Securities set forth on the face of the form of
Security in accordance with Section 3.01.
(g) The holder of the Global Securities may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through
21
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(h) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or other Person with respect to the accuracy of
the books or records, or the acts or omissions, of the Depositary or its nominee
or of any participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payment to be made to Holders under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depositary or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through the
Depositary subject to the applicable procedures of the Depositary. The Trustee
may rely on information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
Section 3.11. Cancellation and Transfer Provisions. The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Trustee shall cancel and dispose of all Securities
surrendered for registration of transfer, exchange, payment, purchase,
repurchase, redemption, conversion (pursuant to Article XIII hereof) or
cancellation in accordance with its customary practices. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
(a) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Physical
Security constituting a Restricted Security to a QIB:
(i) the Security Registrar shall register the
transfer if such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Security stating, or has otherwise advised
the Company and the Security Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing that: (A) it is
purchasing the Security for its own account or an account with respect to which
it exercises sole investment discretion; (B) it and any such account is a QIB
within the meaning of Rule 144A; (C) it is aware that the sale to it is being
made in reliance on Rule 144A; (D) it acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A or
has determined not to request such information; and (E) it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
22
(ii) if the proposed transferee is an Agent
Member, and the Securities to be transferred consist of Physical Securities
which after transfer are to be evidenced by an interest in the Global Security,
upon receipt by the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures, the Security Registrar
shall reflect on its books and records the date and an increase in the Principal
Amount of the Global Security in an amount equal to the Principal Amount of the
Physical Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(b) Private Placement Legend. Upon the registration
of transfer, exchange or replacement of Securities not bearing the legends
required by Sections 3.01 and 3.02, the Security Registrar shall deliver
Securities that do not bear such legends. Upon the registration of transfer,
exchange or replacement of Securities bearing the legends required by Sections
3.01 and 3.02, the Security Registrar shall deliver only Securities that bear
such legends unless there is delivered to the Security Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(c) General. By its acceptance of any Security
bearing the legends required by Sections 3.01 and 3.02, each Holder of such a
Security acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in such legends and agrees that it will transfer such
Security only as provided in this Indenture.
The Security Registrar shall retain, in accordance
with its customary procedures, copies of all letters, notices and other written
communications received pursuant to this Section 3.11. The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Depositary participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
Section 3.12. CUSIP Numbers. In issuing the Securities, the
Company may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices delivered, and as a convenience, to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, when either (i) all Outstanding
Securities have been delivered to the Trustee for cancellation; or (ii) all
Outstanding Securities have become due and payable and the Company deposits with
the Trustee cash sufficient to pay all amounts due and owing on all outstanding
Securities not theretofore delivered to the Trustee for cancellation; and if in
either case the Company has paid all other sums payable hereunder by the
Company. The Trustee shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company.
(b) Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under Section 6.07
and, if money shall have been deposited with the Trustee pursuant to clause
(a)(ii) of this Section 4.01, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive such satisfaction and
discharge.
Section 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money 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, interest and Registration Default Payments,
if any, for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 5.01. Events of Default. "EVENT OF DEFAULT" wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall 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) the Company's (A) failure to deliver the required
number of shares of Common Stock within 30 Business Days after the applicable
Conversion Date or (B) notice, written or oral, to any Holder, including by way
of public announcement or through any of its agents, at any time, of its
intention not to comply with a request for conversion of any Securities
24
into shares of Common Stock that is tendered in accordance with the provisions
of the Securities; or
(b) at any time following the thirtieth consecutive
Business Day that a Holder's (i) pro rata share of the number of shares of the
Common Stock reserved for the purpose of issuance upon conversion of all
Securities is less than the (ii) number of shares of Common Stock that such
Holder would be entitled to receive upon a conversion of the full Principal
Amount of such Holder's Securities (without regard to the Conversion
Limitation); or
(c) a default in the payment of interest or
Registration Default Payments, if any, on any Securities when due and payable
and such default continues for a period of 5 days; or
(d) a default in the payment of the Principal Amount,
the Redemption Price, the Fundamental Change Repurchase Price or any applicable
Make-Whole Premium on any Security when it becomes due and payable; or
(e) a default in the performance of any covenant,
agreement or condition of the Company in this Indenture or the Securities (other
than a default specified in clauses (a) through (d) above), and such default
continues 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 25% in aggregate Principal Amount of the Outstanding
Securities a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(f) a default by the Company or any Significant
Subsidiary in the payment of the principal or interest on any loan agreement or
other instrument under which there may be outstanding, or by which there may be
evidenced, any debt for money borrowed in excess of $10 million in the aggregate
of the Company and any Significant Subsidiary (other than indebtedness for
borrowed money secured only by the real property to which the indebtedness
relates and which is non-recourse to the Company or to such Significant
Subsidiary), whether such debt now exists or shall hereafter be created,
resulting in such debt becoming or being declared due and payable prior to its
stated maturity, and such acceleration shall not have been rescinded or annulled
within 30 days after written notice specifying such default and requiring it to
be remedied and stating that such notice is a "Notice of Default" hereunder has
been received by the Company or such Significant Subsidiary from the Trustee or
by the Trustee, the Company and such Significant Subsidiary by the Holders of at
least 25% in aggregate Principal Amount of the Outstanding Securities; provided
that if any time before a judgment or decree has been obtained by the Trustee as
hereinafter provided, such default is remedied or cured by the Company or such
Significant Subsidiary within the applicable cure period, or is waived by the
holders of such indebtedness, default under this clause (f) shall be deemed to
have been remedied, cured or waived, as the case may be; or
(g) one or more final unsatisfied judgments not
covered by insurance aggregating in excess of $10 million, at any one time, are
rendered against the Company or any Significant Subsidiary and not stayed,
bonded or discharged within 60 days; or
25
(h) a failure by the Company to give the Fundamental
Change Company Notice when required by Section 11.06 hereof; or
(i) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the Company or any
Significant Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
(ii) a decree or order adjudging the Company or any Significant Subsidiary as
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any Significant Subsidiary under any applicable Federal or State law
or (iii) appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary 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
(j) the commencement by the Company or any
Significant Subsidiary of a voluntary case or proceeding under 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 or any Significant Subsidiary 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 any Significant
Subsidiary 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, or the taking of
corporate action by the Company or any Significant Subsidiary in furtherance of
any such action.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default (other than those specified in clauses (i)
and (j) of Section 5.01) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate Principal Amount of
Outstanding Securities, may declare the Principal Amount plus accrued and unpaid
interest and Registration Default Payments, if any, on all Outstanding
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 plus accrued and unpaid interest and Registration Default
Payments, if any, shall become immediately due and payable. Notwithstanding the
foregoing, in the case of an Event of Default specified in clause (i) or (j) of
Section 5.01, the Principal Amount plus accrued and unpaid interest and
Registration Default Payments, if any, on all Outstanding Securities will ipso
facto become due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
Upon demand of the Trustee, following the occurrence of an
Event of Default specified in Section 5.01(d), the Company shall pay to the
Trustee, for the benefit of the Holders, the amounts specified in Section
5.02(b)(i).
26
(b) At any time after such a 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 Majority Holders, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if such
rescission and annulment will not conflict with any judgment or decree of a
court of competent jurisdiction and if:
(i) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on the Securities,
(B) the Principal Amount plus accrued and
unpaid interest and Registration Default Payments, if any, the Redemption Price
or the Fundamental Change Repurchase Price (plus any Make-Whole Premium required
by the terms hereof), as applicable, on any Securities which have become due
otherwise than by such declaration of acceleration, and
(C) 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 any other amounts due the Trustee
under Section 6.07; and
(ii) all Events of Default, other than the
non-payment of the Principal Amount plus accrued and unpaid interest and
Registration Default Payments, if any, on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.12.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. If an Event of Default occurs and is continuing, the
Trustee may, but shall not be obligated to, pursue any available remedy to
collect the payment of the Principal Amount plus accrued but unpaid interest and
Registration Default Payments, if any, on the Outstanding Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess any
of the Securities or does not produce any of the Securities in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 5.04. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee,
27
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
The Trustee shall be entitled to participate as a member of
any official committee of creditors of the Company as it deems necessary or
advisable.
Section 5.05. Application of Money Collected. Any money and
property collected by the Trustee pursuant to this Article 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 and property to Holders, 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;
SECOND: To the payment of the amounts then due and unpaid on
the Securities for the Principal Amount, the Redemption Price, the Fundamental
Change Repurchase Price (plus any Make-Whole Premium required by the terms
hereof) or interest and Registration Default Payments, if any, as the case may
be, 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; and
THIRD: The balance, if any, to the Company.
Section 5.06. Limitation on Suits. No Holder 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 (other than in the case of an Event of Default specified in
clause (i) or (j) of Section 5.01), 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) the Trustee for 60 days after its receipt of such
notice, request and offer of security or indemnity has failed to institute any
such proceeding;
28
(d) no direction, in the opinion of the Trustee,
inconsistent with such written request has been given to the Trustee during such
60-day period by the Majority Holders; and
(e) it being understood and intended that no one or
more Holders shall have any right in any manner whatever by virtue of, or by
availing itself of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
Section 5.07. Unconditional Right of Holders to Receive
Payment. Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the Principal Amount, the Redemption Price, the
Fundamental Change Repurchase Price, any applicable Make-Whole Premium or
interest and Registration Default Payments, if any, in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities or any Redemption Date or Fundamental Change Settlement Date, as
applicable, and to convert the Securities in accordance with Article XIII, or to
bring suit for the enforcement of any such payment on or after such respective
dates or the right to convert, shall not be impaired or affected adversely
without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.09. 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 3.08, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
29
Section 5.11. Control by Holders. The Majority Holders shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that:
(a) such direction shall not be in conflict with any
rule of law or with this Indenture;
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction; and
(c) the Trustee may refuse to follow any direction
that may involve the Trustee in personal liability for which the Trustee would
not otherwise be entitled to indemnification pursuant to the terms of this
Indenture.
Section 5.12. Waiver of Past Defaults. The Majority Holders
may, on behalf of the Holders of all the Securities, waive any past Default
hereunder and its consequences, except a Default:
(a) described in clauses (c), (d), (i) or (j) of
Section 5.01; or
(b) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder 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 5.13. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, in either case in
respect of the Securities, a court may require any party litigant in such suit
to file an undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorney's fees, and expenses, against
any party litigant in the suit having due regard to the merits and good faith of
the claims or defenses made by the party litigant; but the provisions of this
Section 5.13 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 for the
enforcement of the payment of the Principal Amount or interest or Registration
Default Payments on any Security on or after the Maturity Date of such Security,
the Redemption Price, the Fundamental Change Repurchase Price or any applicable
Make-Whole Premium. This Section 5.13 shall be in lieu of Section 315(e) of the
Trust Indenture Act and such Section 315(e) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
Section 5.14. 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
30
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.
The duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act and as set forth herein.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise thereof
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trust Indenture Act (as applicable) and the
Trustee need perform only those duties as are specifically set forth in this
Indenture and no covenants or obligations shall be implied in or read into this
Indenture against the Trustee; and
(2) 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; provided, however, in case of
any such certificates or opinions furnished to the Trustee which by the
provisions hereof are furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary
herein contained, the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(d) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any liability
(financial or otherwise). The Trustee shall be under no obligation to exercise
any of its rights or powers under this Indenture at the request, order or
direction of any Holders unless such Holders have offered to the Trustee
security and indemnity reasonably satisfactory to the Trustee against the costs
and expenses which may be
31
incurred by it (including repayment of its own funds) in compliance with such
request, order or direction.
(e) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to clauses (a), (b), (c) and (d) of this Section 6.01.
The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Money and assets held in trust by the Trustee need not be segregated
from other funds or assets held by the Trustee except to the extent required by
law.
Section 6.02. Notice of Defaults. The Trustee shall give the
Holders notice of any Default hereunder of which it has actual knowledge or
notice per Section 6.03(h) within 10 days after having knowledge of the
occurrence thereof. The preceding sentence shall be in lieu of the provision to
Section 315(b) of the Trust Indenture Act and such proviso is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 6.03. Certain Rights Of Trustee. Subject to the
provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) unless specifically provided otherwise in this
Indenture, any demand, request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or
Officer's Certificate; and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a copy thereof certified by the
Secretary or an assistant secretary of the Company to have been duly adopted and
in full force and effect on the date thereof;
(c) before the Trustee acts or refrains from acting,
it may consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, or both, which shall conform to Section 1.02. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The written advice
of the Trustee's counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by the Trustee hereunder in good faith and in reliance
thereon;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(e) 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 to consult with the officers and representatives of
the Company, including the Company's accountants and attorneys, at the sole cost
of the Company and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation;
(f) the Trustee shall not be under a duty to review
or evaluate any report or information delivered to the Trustee pursuant to the
provisions of Section 10.07 for the purposes of making such reports available to
it and to the Holders of Securities who may request such information; delivery
of such reports, information and documents to the Trustee as may be required
under 10.07 is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers' Certificates);
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and shall not be responsible for the misconduct or
negligence of such agents and attorneys appointed with due care;
(h) the Trustee shall not be deemed to have notice or
be charged with knowledge of any Default or Event of Default unless either (i) a
Responsible Officer shall have actual knowledge of such Default or Event of
Default or (ii) written notice of such Default or Event of Default shall have
been received by a Responsible Officer from the Company or any other obligor on
such Securities or by any Holder of such Securities and such notice references
the Securities and this Indenture. In the absence of any such notice, the
Trustee may conclusively assume that no Default or Event of Default exists;
(i) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(j) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, including the Trustee's officers, directors,
agents and employees and each agent, custodian and other Person employed to act
hereunder. Such rights, privileges, protections, immunities and benefits,
including, without limitation, the right to indemnification, together with the
Trustee's right to compensation and reimbursement of expenses, shall survive the
Trustee's resignation or removal and final payment of the Securities;
33
(k) the permissive rights of the Trustee to take any
action under this Indenture shall not be construed as a duty to so act unless so
specified herein; and
(l) the Trustee shall not be required to give any
bond or surety in respect of the performance or exercise of its powers or duties
hereunder.
Section 6.04. Not Responsible for Recitals. 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, sufficiency or priority of this Indenture or
of the Securities or of the Common Stock. 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. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Section 6.08 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar 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 in writing with the
Company.
Section 6.07. Compensation and Indemnity. The Company shall
pay to the Trustee, the Conversion Agent, the Paying Agent and the Security
Registrar (each an "INDEMNIFIED PARTY") from time to time compensation for their
respective services as Trustee, Conversion Agent, Paying Agent or Security
Registrar, as the case may be, as agreed in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse each Indemnified Party upon request for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by it in connection with the performance of its duties hereunder. Such expenses
shall include the reasonable fees and expenses of each of such Indemnified
Party's agents and counsel.
The Company hereby indemnifies each Indemnified Party and its
agents, employees, stockholders and directors and officers for, and holds each
of them harmless against, any loss, cost, claim, liability or expense (including
taxes) incurred by any of them except for such actions to the extent caused by
any gross negligence or willful misconduct on the part of such Indemnified
Party, arising out of or in connection with the Indenture or the administration
of the trust created hereby, including the reasonable costs and expenses of
enforcing this Indenture against the Company (including this Section 6.07) and
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder
(including the reasonable fees and expenses of counsel). An Indemnified Party
shall notify the Company promptly of any claim asserted against such Indemnified
Party for which such Indemnified Party has advised the Trustee that it may seek
indemnity hereunder. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. At the Indemnified Party's
sole discretion, the Company
34
shall defend the claim and the Indemnified Party shall cooperate and may
participate in the defense; provided that any settlement of a claim shall be
approved in writing by the Indemnified Party. Alternatively, the Indemnified
Party may at its option have separate counsel of its own choosing and the
Company shall pay the reasonable fees and expenses of such counsel; provided
that the Company shall not be required to pay such fees and expenses if it
assumes the Indemnified Party's defense and there is no conflict of interest
between or alternative defenses between the Company and the Indemnified Party in
connection with such defense as reasonably determined by the Indemnified Party.
The Company need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section
6.07, each Indemnified Party shall have a lien prior to the Securities on all
monies or property held or collected by the Trustee, in its capacity as Trustee,
except funds held in trust for the benefit of Holders of particular Securities.
When an Indemnified Party incurs expenses or renders services
after an Event of Default specified in Section 5.01(h) or (i) occurs, such
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Code.
The obligations of the Company under this Section 6.07 shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee, Conversion Agent, Paying Agent or the Security
Registrar.
"Trustee", "Paying Agent", "Conversion Agent", and "Security
Registrar" for purposes of this Section 6.07 shall include any predecessor
Trustee, Paying Agent, Conversion Agent, and Security Registrar; provided,
however, that the bad faith, gross negligence or willful misconduct of any
Trustee, Paying Agent, Conversion Agent, and Security Registrar hereunder shall
not affect the rights of any other Trustee, Paying Agent, Conversion Agent, and
Security Registrar hereunder.
Section 6.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has, or whose
parent banking company has, a combined capital and surplus of at least
$50,000,000. If such Person 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 6.09, the combined capital and
surplus of such Person 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 6.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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Section 6.10. 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 VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction at the expense of the Trustee for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of
the Majority Holders delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the notice of removal, the Trustee being
removed may petition, at the reasonable expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities.
(d) If at any time:
(i) the Trustee shall fail to comply
with Section 6.08 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 6.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable
of acting or shall be adjudged a bankrupt or insolvent, or
(iv) 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, (A) the Company by a
Company Order may remove the Trustee, or (B) subject to Section 5.13, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(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 Company Order, shall promptly appoint a successor
Trustee. 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 Majority Holders delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted
36
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(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 in the manner provided in Section 1.06. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
Section 6.11. 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 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 qualified and
eligible under this Article VI.
Notwithstanding the resignation or removal of the Trustee, the
Company's obligations under Section 6.07 shall continue for the benefit of the
retiring trustee with respect to expenses and liabilities incurred by it prior
to such resignation or removal.
Section 6.12. 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 the corporate trust
business of the Trustee by sale or otherwise, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article VI, 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 6.13. Preferential Collection of Claims Against. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
37
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
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) quarterly, not more than 15 days after each
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Record Date; and
(b) at such other times as the Trustee may 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; provided, however, that no such list need be
furnished so long as the Trustee is acting 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 as provided in
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.
(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.
Section 7.03. Reports By Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted
no later than May 15 in each calendar year, commencing on May 15, 2005. Each
such report shall be dated as of a date not more than 60 days prior to the date
of transmission.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange or of any delisting thereof.
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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
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) either (i) the Company shall be the continuing
Person or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the "SURVIVING ENTITY"), (1) shall be
either (a) organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia, or (b) organized under
the laws of a jurisdiction outside the United States and has, or immediately
after the transaction or event will have, common stock traded on a national
securities exchange in the United States or quoted on the NYSE, the Nasdaq
National Market or The Nasdaq SmallCap Market and a worldwide total market
capitalization of its equity securities before giving effect to the
consolidation or merger of at least $250 million, and (2) the Surviving Entity
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) immediately after giving effect to 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 occurred and be
continuing; and
(c) the Company or the Surviving Entity has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article VIII and Article IX,
respectively and, if applicable, such supplemental indenture shall provide (i)
that the Holder of each Security then outstanding shall have the right to
convert such Security into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the shares of Common Stock deliverable
upon conversion of such Security immediately prior to such consolidation merger,
sale or conveyance and (ii) for adjustments of the Conversion Price which shall
be nearly as equivalent as may be practicable to the adjustments of the
Conversion Price provided for in Article XIII.
The provisions of this Section 8.01 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
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 or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section
39
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, except in the case
of a lease, 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. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, 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 of the
Company herein and in the Securities; or
(b) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Company; or
(c) to provide for a successor Trustee with respect
to the Securities; or
(d) to cure any ambiguity or defect, to correct or
supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture; provided that such action pursuant to this clause
(d) shall not adversely affect the interests of the Holders in any material
respect; or
(e) to add any additional Events of Default for the
benefit of the Holders; or
(f) to convey, transfer, assign, mortgage or pledge
to the Trustee as security for the Securities any property or assets; or
(g) to decrease the Conversion Price of the
Securities; provided, however, that such decrease shall be in accordance with
the terms of this Indenture or shall not adversely affect the interests of the
Holders; or
(h) to supplement any provision of this Indenture to
such extent as shall be necessary to permit or facilitate the discharge of the
Securities; provided that such change or modification would not reasonably be
expected to adversely affect the interests of the Holders in any material
respect; or
(i) to make any change or modification necessary in
connection with the registration of the Securities under the Securities Act as
contemplated in the Registration Rights
40
Agreement; provided that such change or modification does not adversely affect
the interests of the Holders; or
(j) to add or modify any other provision herein with
respect to matters or questions arising hereunder which the Company and the
Trustee may deem necessary or desirable and which would not reasonably be
expected to adversely affect the interests of the Holders in any material
respect.
Section 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Majority Holders by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) reduce the rate of or extend the time for payment
of interest, if any, on such Security; or
(b) reduce the Principal Amount of, or extend the
Stated Maturity of, such Security; or
(c) make any change that impairs or adversely affects
the conversion rights of such Security; or
(d) reduce the Redemption Price, the Fundamental
Change Repurchase Price of any Security, the Make-Whole Premium or amend or
modify in any manner adverse to the Holders the Company's obligation to make
such payments, whether through an amendment or waiver of provisions in the
covenants, definitions or otherwise; or
(e) modify the provisions with respect to the right
of Holders to cause the Company to redeem Securities on the Redemption Date or
to repurchase Securities upon a Fundamental Change in a manner adverse to
Holders; or
(f) make any interest or principal on a Security
payable in money other than that stated in the Security or other than in
accordance with the provisions of this Indenture; or
(g) impair the right of any Holder to receive payment
of the Principal Amount of or interest or Registration Default Payments, if any,
on a Holder's Securities on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder's
Securities; or
(h) reduce the quorum or voting requirements under
this Indenture; or
(i) change the ranking of the Securities in a manner
adverse to the Holders; or
41
(j) make any change in the amendment provisions which
require each Holder's consent or in the waiver provisions; or
(k) reduce the percentage in 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 (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or
(l) modify any of the provisions of this Section 9.02
or Section 5.12, except to increase any such percentage 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
(m) modify the provisions of the Indenture in a
manner adverse to the Holders in any material respect.
It shall not be necessary for any Act of Holders
under this Section 9.02 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 IX or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, and
(subject to Section 6.01) shall be fully protected in relying upon, in addition
to the documents required by Section 1.02, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
supplemental indenture if the same does not adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture that
adversely 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 IX, 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. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX shall bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture
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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. Payments. The Company shall duly and punctually
make all payments in respect of the Securities in accordance with the terms of
the Securities and this Indenture.
Any payments made or due pursuant to this Indenture shall be
considered paid on the applicable date due if by 12:00 noon, New York City time,
on such date the Paying Agent holds, in accordance with this Indenture, cash
sufficient to pay all such amounts then due. Payment of the Principal Amount and
interest, including Redemption Price and Fundamental Change Repurchase Price,
any applicable Make-Whole Premium and Registration Default Payments, if any, on
the Securities shall be 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.
Section 10.02. Maintenance of Office or Agency. The Company
shall maintain an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served, which shall
initially be the Corporate Trust Office of the Trustee. The Company shall give
prompt written notice to the Trustee of any change in the location, of 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, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. The Company
hereby initially designates __________________ as one such office or agency of
the Company.
Section 10.03. Money for Security Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of any payment in respect of any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to make the payment so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and shall promptly
notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of any payment in respect of any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
10.03, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
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 making of payments in respect of any
Security and remaining unclaimed for one year after such payment has become due
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 an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in 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 shall be repaid to the Company. In the absence of a written request
from the Company to return funds remaining unclaimed for one year after such
payment has become due to the Company, the Trustee shall from time to time
deliver all unclaimed payments to or as directed by applicable escheat
authorities, as determined by the Trustee in its sole discretion, in accordance
with the customary practices and procedures of the Trustee. Any such unclaimed
funds held by the Trustee pursuant to this Section 10.03 shall be held
uninvested and without any liability for interest.
Section 10.04. Statement by Officers as to Default. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in Default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement
44
of notice provided hereunder) and, if the Company shall be in Default,
specifying all such Defaults and the nature and status thereof of which they may
have knowledge.
The Company shall promptly deliver to the Trustee and in any
event within 30 days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company is
taking or proposes to take with respect thereto.
Section 10.05. Existence. Subject to Article VIII, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its 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 10.06. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 10.07. Reports and Delivery of Certain Information.
(a) The Company shall file with the Trustee such annual and quarterly reports,
information, documents and other reports, copies of its annual report 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, within 15 days after the applicable filing date as
set forth in the Exchange Act, whether or not Company makes the filing with the
Commission. The Company also shall comply with Trust Indenture Act Section
314(a), whether or not the Securities are governed by the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers' Certificates). At any time when the
Company is not subject to Section 13 of 15(d) of the Exchange Act, the Company
shall furnish to the Trustee (i) quarterly financial statements within 45 days
after the end of each fiscal quarter that are substantially equivalent to those
the Company would be required to file with the Commission in a Quarterly Report
on Form 10-Q, (ii) annual financial statements within 90 days after the end of
each fiscal year that are substantially equivalent to those the Company would be
required to file with the Commission in an Annual Report on Form 10-K, including
a report thereon by the Company's certified independent accountants, and (iii)
accompanying each of the financial statements required by (i) and (ii) above,
information substantially equivalent to that required by Regulation S-K Item
303, "Management Discussion and Analysis of Financial Condition and Results of
Operations;" provided, that in each case the delivery of materials to the
Trustee by electronic means shall be deemed "furnished" to the Trustee for
purposes of this Section 10.07; provided, further, that the Company shall be
deemed to have satisfied its obligations under each of (i), (ii) and (iii) above
if it files such information
45
with the Commission (if the Commission will accept such filing) or otherwise
makes such financial statements and other information available on or through
its web site.
(b) At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any
beneficial owner of Securities or holder or beneficial owner of shares of Common
Stock issued upon conversion thereof, the Company will promptly furnish or cause
to be furnished Rule 144A Information (as defined below) and any reports
required to be filed by them under the Exchange Act or the Securities Act to
such Holder or any beneficial owner of Securities or holder or beneficial owner
of shares of Common Stock, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. "RULE 144A INFORMATION"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 10.08. Resale of Certain Securities. During the period
beginning on the Issue Date and ending on the date that is two years from the
Issue Date, the Company shall not, and shall not permit any of its "affiliates"
(as defined under Rule 144) to, resell any Securities which constitute
"restricted securities" under Rule 144 that 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 10.09. Book-Entry System. If the Securities cease to
trade in the Depositary'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.
Section 10.10. Registration Default Payments Under the
Registration Rights Agreement. If at any time Registration Default Payments
become payable by the Company pursuant to the Registration Rights Agreement, the
Company shall promptly deliver to the Trustee a certificate to that effect and
stating (i) the amount of such Registration Default Payments that are payable
and (ii) the date on which such Registration Default Payments are payable
pursuant to the terms of the Registration Rights Agreement. Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Registration Default Payments are payable. If the
Company has paid Registration Default Payments directly to the Persons entitled
to such Registration Default Payments, the Company shall deliver to the Trustee
a certificate setting forth the particulars of such payment.
Section 10.11. Information for IRS Filings. The Company shall
provide to the Trustee on a timely basis such information as the Trustee
requires to enable the Trustee to prepare and file any form required to be
submitted by the Company with the Internal Revenue Service and the Holders.
46
ARTICLE XI
REDEMPTION PRIOR TO MATURITY; REPURCHASE UPON A FUNDAMENTAL CHANGE
Section 11.01. Right to Require Redemption. (a) The Company
shall have no right at its option to redeem the Securities at any time prior to
the Stated Maturity. The Company shall redeem prior to the Stated Maturity any
Securities which Holders elect for redemption in accordance with this Article XI
on the Redemption Date. Each Holder making an election in accordance with this
Article XI shall, by notice given in accordance with Section 11.03, have the
right to have its Securities redeemed by the Company, in whole or in part, on
the Redemption Date at the Redemption Price; provided, however, that each Holder
must (irrespective of the notice requirements of Section 11.02) redeem on the
Redemption Date an amount equal to the product of (a) 12.5%, (b) (i) the sum of
(x) $65,500,000 and (y) the Principal Amount of all Securities issued pursuant
to the exercise of Additional Investment Rights, less (ii) the Principal Amount
of Securities previously converted, redeemed or repurchased, and (c) a fraction
(i) the numerator of which is the Principal Amount of the Outstanding Securities
held by such Holder on the Redemption Date and (ii) the denominator of which is
the aggregate Principal Amount of the Outstanding Securities held by all Holders
(other than the Company) as of such date (the "MINIMUM REDEMPTION AMOUNT"). The
"REDEMPTION PRICE" means the Principal Amount of the Securities to be redeemed,
together with accrued and unpaid interest and Registration Default Payments, if
any, to, but excluding the Redemption Date.
(b) Applicable High Yield Discount Obligation.
Notwithstanding the preceding Section 11.01(a), if the sum of each Holder's
total Minimum Redemption Amount would, but for this provision, exceed an amount
equal to the product of: (i) the issue price (as defined in sections 1273(b) and
1274(a) of the Code ) of the Securities; and (ii) the yield to maturity
(interpreted in accordance with section 163(i) of the Code) of the Securities
(such product, the "MAXIMUM ACCRUAL"), then all accrued and unpaid interest, and
if necessary the Principal Amount of the Securities, in excess of an amount
equal to the Maximum Accrual shall be paid in cash by the Company to the Holders
on the Redemption Date and at the end of any accrual period thereafter (as
defined in section 1272(a)(5) of the Code) to prevent the Securities from being
treated as an "Applicable High Yield Discount Obligation" within the meaning of
section 163(i)(l) of the Code.
Section 11.02. Notice of Right to Require Redemption. At least
30 days but not more than 60 days before the Redemption Date, the Company shall
mail a notice (the "NOTICE OF REDEMPTION RIGHT") of a Holder's right to require
redemption by first-class mail, postage prepaid, to each Holder of Securities.
The Notice of Redemption Right shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the aggregate Minimum Redemption Amounts of all
Holders;
(d) the Conversion Price;
47
(e) the name and address of the Paying Agent and
Conversion Agent;
(f) that Securities presented for redemption may be
converted at any time before the close of business on the Business Day
immediately preceding the Redemption Date;
(g) that Holders who want to convert Securities must
satisfy the requirements set forth therein and in this Indenture;
(h) that Securities presented for redemption must be
surrendered to the Paying Agent for cancellation to collect the Redemption
Price;
(i) that, unless the Company defaults in making
payment of such Redemption Price, interest and Registration Default Payments, if
any, will cease to accrue on and after the Redemption Date with respect to the
Securities to be redeemed;
(j) that if the Holder does not comply with the
procedures specified and present Securities to be redeemed to the Paying Agent
not later than the Redemption Date, the right to require redemption in excess of
such Holder's Minimum Redemption Amount will terminate; and
(k) the CUSIP number of the Securities.
At the Company's written request delivered at least 15 days
prior to the date such notice is to be given to the Holders (unless a shorter
time period shall be acceptable to the Trustee), the Trustee shall give the
Notice of Redemption Right in the Company's name and at the Company's expense.
For purposes of clarification, the redemption of the Minimum
Redemption Amount shall occur notwithstanding any failure by any Holder to
comply with the procedures specified in this Section 11.02 and present
Securities to be redeemed to the Paying Agent.
Section 11.03. Redemption by Holder. At any time after a
Holder's timely receipt of a Notice of Redemption Right, but in no event later
than five days prior to the Redemption Date, such Holder may require the Company
to redeem, in whole or in part, an amount of the Securities held by such Holder
in excess of such Holder's Minimum Redemption Amount by delivering a notice (the
"NOTICE OF REDEMPTION") to the Paying Agent. The Notice of Redemption shall
state:
(a) the certificate number (if such Security is held
other than in global form) of the Security which the Holder will deliver to be
redeemed;
(b) the portion of any Principal Amount of the
Security in excess of such Holder's Minimum Redemption Amount which the Holder
will deliver to be redeemed; and
(c) that such Security shall be redeemed as of the
Redemption Date pursuant to the terms and conditions specified in the Securities
and in this Indenture.
48
Section 11.04. Deposit of Redemption Price. Prior to 10:00
a.m., New York City time, on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of all Securities to be redeemed on that date other
than Securities or portions of Securities presented for redemption which on or
prior thereto have been delivered by the Company to the Trustee for cancellation
or have been converted. The Paying Agent shall as promptly as practicable return
to the Company any money not required for that purpose because of conversion of
Securities pursuant to Article XIII. If such money is then held by the Company
in trust and is not required for such purpose it shall be discharged from such
trust.
Section 11.05. Securities Redeemed in Part. Upon surrender of
a Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered. The Company shall not be required to (i) issue, register the
transfer of, or exchange any Securities during a period of 10 days before the
Redemption Date or (ii) register the transfer of, or exchange any, Securities so
presented for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 11.06. Repurchase of Securities at Option of the
Holder Upon Fundamental Change.
(a) General. If prior to the Stated Maturity there
shall have occurred a Fundamental Change, each Holder shall have the option to
require all or a portion (which portion must be in a Principal Amount of $1,000
or integral multiples thereof) of its Securities to be repurchased (the
"FUNDAMENTAL CHANGE REPURCHASE") by the Company at the Fundamental Change
Repurchase Price (plus any Make-Whole Premium required by the terms hereof) on
the Fundamental Change Settlement Date in accordance with the following
procedures. The "FUNDAMENTAL CHANGE REPURCHASE PRICE" means the Principal Amount
of the Securities to be repurchased, together with accrued and unpaid interest
and Registration Default Payments, if any, to, but excluding, the Fundamental
Change Settlement Date.
(b) Company Notice of Fundamental Change. Within 15
days after the Company knows or reasonably should know of the occurrence of a
Fundamental Change, the Company shall deliver a written notice of Fundamental
Change (the "FUNDAMENTAL CHANGE COMPANY NOTICE") by first-class mail or by
overnight courier to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Fundamental
Change Repurchase Notice to be completed by the Securityholder and shall state:
(i) the events causing a Fundamental
Change and the date of such Fundamental Change;
(ii) the last date of the Fundamental
Change Conversion/Repurchase Period by which a Holder must deliver a Fundamental
Change Repurchase Notice to elect the repurchase option pursuant to this Section
11.06 or deliver a
49
Notice of Conversion requesting conversion upon a Fundamental Change in
accordance with Section 13.02;
(iii) the Fundamental Change Settlement
Date;
(iv) the Fundamental Change Repurchase
Price;
(v) the Conversion Price applicable on
the date of the Fundamental Change Company Notice;
(vi) that Securities may be converted in
connection with a Fundamental Change and any Securities as to which a
Fundamental Change Repurchase Notice has been given may be converted pursuant to
Article XIII hereof only if the Fundamental Change Repurchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(vii) that Securities must be surrendered
to the Paying Agent for cancellation to collect payment;
(viii) that the Fundamental Change
Repurchase Price (plus any Make-Whole Premium required by the terms hereof) for
any Security as to which a Fundamental Change Repurchase Notice has been duly
given and not withdrawn will be paid promptly following the later of the
Fundamental Change Settlement Date and the time of surrender of such Security as
described in clause (vii) above;
(ix) the procedures the Holder must
follow to exercise rights under this Section 11.06;
(x) the procedures for withdrawing a
Fundamental Change Repurchase Notice;
(xi) that, unless the Company defaults in
making payment of the Fundamental Change Repurchase Price or any applicable
Make-Whole Premium, Securities covered by any Fundamental Change Repurchase
Notice will cease to be outstanding and interest and Registration Default
Payments, if any, will cease to accrue on and after the Fundamental Change
Settlement Date;
(xii) the CUSIP number of the Securities;
(xiii) that a Make-Whole Premium is
required to be paid by the Company upon any conversion or redemption in
connection with a Fundamental Change; and
(xiv) whether such Make-Whole Premium
shall be paid in cash, by delivery of shares of Common Stock or a combination
thereof in accordance with Section 14.01(c) (and containing such information
required by Section 14.01(c)) and subject to the conditions of Section 14.01(d).
The Company shall, at least three (3) Business Days prior to
delivering the Fundamental Change Company Notice, deliver an Officers'
Certificate to the Trustee specifying:
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(A) the information required by the
Fundamental Change Company Notice pursuant to Section 11.06(b),
(B) if the Company elects to pay
all or a portion of the Make-Whole Premium in shares of Common Stock, that the
conditions to such manner of payment set forth in Section 14.01(d) have been or
will be complied with, and
(C) whether the Company desires the
Trustee to give the Fundamental Change Company Notice required by
Section 11.06(b).
If the Company requests that the Trustee shall give (at the
Company's expense) such Fundamental Change Company Notice in the Company's name,
the Company shall, in all cases, prepare the text of such Fundamental Change
Company Notice. In connection with delivery of the Fundamental Change Company
Notice to the Holders, the Company shall publish a notice containing
substantially the same information that is required in the Fundamental Change
Company Notice in a newspaper published in the English language, customarily
published each Business Day and of general circulation in The City of New York,
or publish such information on the Company's website or through such other
public medium as the Company may use at such time.
(c) Fundamental Change Repurchase Notice. In order to
exercise its rights under Section 11.06 hereof, a Holder must deliver to the
Paying Agent:
(i) a written notice of repurchase (a
"FUNDAMENTAL CHANGE REPURCHASE NOTICE"), substantially in the form of Exhibit D
hereto, at any time during the Fundamental Change Conversion/Repurchase Period:
(A) the certificate number (if such
Security is held other than in global form) of the Security which the Holder
will deliver to be repurchased;
(B) the portion of the Principal
Amount of the Security which the Holder will deliver to be purchased, which
portion must be in a Principal Amount of $1,000 or integral multiples thereof;
and
(C) that such Security shall be
purchased as of the Fundamental Change Settlement Date pursuant to the terms and
conditions specified in the Securities and in this Indenture; and
(ii) the Security (if such Security is
held other than in global form) for cancellation prior to, on or after the
Fundamental Change Settlement Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Fundamental Change Repurchase Price (plus any Make-Whole
Premium required by the terms hereof) therefor; provided that such Fundamental
Change Repurchase Price (plus any applicable Make-Whole Premium) shall be so
paid pursuant to this Section 11.06 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof in the
related Fundamental Change Repurchase Notice.
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Provisions of this Indenture that apply to the repurchase of
all of a Security also apply to the repurchase of such portion of such Security.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Fundamental Change Repurchase Notice or written notice of
withdrawal thereof.
(d) Payment of Fundamental Change Repurchase Price.
The Securities to be repurchased pursuant to this Section 11.06 shall be paid
for by (i) the payment of the Fundamental Change Redemption Price in cash and
(ii) the payment of the Make-Whole Premium, at the option of the Company and
subject to Section 14.01(d), in either cash or shares of Common Stock.
(e) Procedure Upon Repurchase. The Company shall
deposit cash at the time and in the manner as provided in Section 11.10,
sufficient to pay the aggregate Fundamental Change Repurchase Price of all
Securities to be purchased pursuant to this Section 11.06. The Company shall
make deposits relating to payment of the Make-Whole Premium in accordance with
Section 14.02.
Section 11.07. Effect of Fundamental Change Repurchase Notice.
Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section 11.06(c), the Holder of the Security in respect of which
such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Fundamental Change
Repurchase Price (plus any Make-Whole Premium required by the terms hereof) with
respect to such Security. Such Fundamental Change Repurchase Price shall be paid
to such Holder, subject to receipt of funds by the Paying Agent, promptly
following the later of (x) the Fundamental Change Settlement Date with respect
to such Security (provided the conditions in Section 11.06(c) have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 11.06(c). Securities in
respect of which a Fundamental Change Repurchase Notice has been given by the
Holder thereof may not be converted pursuant to Article XIII on or after the
date of the delivery of such Fundamental Change Repurchase Notice unless such
Fundamental Change Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
A Fundamental Change Repurchase Notice may be withdrawn only
by means of a written notice of withdrawal delivered to the office of the Paying
Agent in accordance with the procedures set forth in the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day
prior to the Fundamental Change Settlement Date specifying:
(a) the Principal Amount of the Security with respect
to which such notice of withdrawal is being submitted;
(b) the certificate number (if such Security is held
in other than global form) of the Security in respect of which such notice of
withdrawal is being submitted; and
(c) the Principal Amount, if any, of such Security
which remains subject to the original Fundamental Change Repurchase Notice and
which has been or will be delivered for purchase or repurchase by the Company.
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There shall be no repurchase of any Securities pursuant to
Section 11.06 if there has occurred (prior to, on or after, as the case may be,
the giving, by the Holders of such Securities, of the required Fundamental
Change Repurchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Fundamental Change Repurchase Price or any
applicable Make-Whole Premium with respect to such Securities). The Paying Agent
will promptly return to the respective Holders thereof any Securities (x) with
respect to which a Fundamental Change Repurchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the Fundamental Change
Repurchase Price or any applicable Make-Whole Premium with respect to such
Securities) in which case, upon such return, the Fundamental Change Repurchase
Notice with respect thereto shall be deemed to have been withdrawn.
Section 11.08. Securities Repurchased in Whole or in Part. Any
Security which is to be repurchased, whether in whole or in part, shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of the
Security so surrendered which is not repurchased.
Section 11.09. Covenant to Comply With Securities Laws Upon
Repurchase of Securities. In connection with any offer to repurchase Securities
under Section 11.06 (provided that such offer or repurchase constitutes an
"issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or repurchase), the Company shall (a) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (b) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, and (c) otherwise comply with
all Federal and state securities laws so as to permit the rights and obligations
under Section 11.06 to be exercised in the time and in the manner specified in
Section 11.06, as applicable.
Section 11.10. Deposit of Fundamental Change Repurchase Price.
Prior to 12:00 noon, New York City time, on the Business Day preceding the
Fundamental Change Settlement Date, the Company shall deposit with the Trustee
or with the Paying Agent (or, if the Company or a Significant Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided herein) an amount of money (in immediately available
funds if deposited on such Business Day), sufficient to pay the Fundamental
Change Repurchase Price of all the Securities or portions thereof which are to
be repurchased or as of the Fundamental Change Settlement Date. The Company
shall promptly notify the Trustee in writing of the amount of any deposits of
cash made pursuant to this Section 11.10.
Section 11.11. Repayment to the Company. The Trustee or the
Paying Agent, as the case may be, shall return to the Company any cash that
remains unclaimed, together with interest or dividends, if any, thereon, held by
them for the payment of the Fundamental Change Repurchase Price; provided that
to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 11.10 exceeds the aggregate Fundamental Change Repurchase
53
Price of the Securities or portions thereof which the Company is obligated to
repurchase as of the Fundamental Change Settlement Date, then as soon as
practicable following the Fundamental Change Settlement Date, the Trustee or the
Paying Agent, as the case may be, shall return any such excess to the Company.
ARTICLE XII
INTEREST PAYMENTS ON THE SECURITIES
Section 12.01. Interest Rate. (a) Interest on the Securities
shall be payable quarterly in arrears on each Interest Payment Date to Holders
of record on the Record Date immediately preceding such Interest Payment Date.
Interest on the Securities shall accrue at a rate of 5% per annum. On each
Interest Payment Date, an additional sum shall be payable as interest on each
Security equal to the product of (i) the number of shares of Common Stock into
which such Security was convertible on the Record Date for such Interest Payment
Date (without regard to the Conversion Limitation) and (ii) the cash dividends
or cash distributions, whether periodic, special, extraordinary, non-recurring
or other, paid by the Company in cash per share of Common Stock during the
three-month period ending on such Record Date (all such determinations to be
appropriately adjusted for any stock dividend, stock split, stock combination or
other transaction during the applicable calculation period). In connection with
the foregoing, the Company shall provide notice to the Trustee 30 days prior to
each Interest Payment Date, setting forth the Company's calculation of the
amount due. Notwithstanding the foregoing, during the period from the Original
Issue Date to and including November 15, 2006, interest on the Securities shall
accrue at the rate of 6 3/4% per annum if such rate would produce a greater
amount of interest payable on any Interest Payment Date which includes any
portion of such period than would result under the first three sentences of this
Section 12.01(a). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest on the Securities shall accrue from
the most recent date to which interest has been paid, or if no interest has been
paid, from the Original Issue Date, until the Principal Amount is paid or duly
made available for payment.
(b) Interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security is registered at the close of business
on the Record Date for such interest at the office or agency of the Company
maintained for such purpose. Each installment of interest on any Security shall
be made by check mailed to the address of the Holder specified in the register
of Securities; provided, however, that, with respect to any Holder with an
aggregate Principal Amount of Securities in excess of $2,000,000, at the request
of such Holder in writing to the Company, interest on such Holder's Securities
shall be paid by wire transfer in immediately available funds in accordance with
the written wire transfer instruction supplied by such Holder from time to time
to the Trustee and Paying Agent (if different from the Trustee) at least ten
(10) days prior to the applicable Interest Payment Date. In the case of a
permanent Global Security, interest payable on any Interest Payment Date will be
paid to the Depositary, with respect to that portion of such permanent Global
Security held for its account by Cede & Co. for the purpose of permitting the
Depositary to credit the interest received by it in respect of such permanent
Global Security to the accounts of the beneficial owners thereof.
54
ARTICLE XIII
CONVERSION
Section 13.01. Conversion Privilege. (a) Subject to the
further provisions of this Article XIII, at any time or times after the Issue
Date, a Holder of a Security may convert the Principal Amount of such Security
(or any portion thereof equal to $1,000 or any integral multiple of $1,000 in
excess thereof) into shares of Common Stock at any time prior to the close of
business on the Business Day prior to the Stated Maturity.
(b) Conversion Period. Notwithstanding the foregoing,
if such Security is presented for repurchase pursuant to Article XI, such
conversion right shall terminate at the close of business on the last day of the
Fundamental Change Conversion/Repurchase Period for such Security (unless the
Company shall default on payment when due of the Fundamental Change Repurchase
Price and any applicable Make-Whole Premium), in which case the conversion right
shall extend to the close of business on the date such default is cured and such
Security is repurchased).
(c) Conversion Rate. The number of shares of Common
Stock issuable upon conversion of any Principal Amount pursuant to Section 13.01
shall be determined by dividing (x) such Principal Amount by (y) the Conversion
Price (the "CONVERSION RATE").
(d) Securities Converted in Whole or in Part.
Provisions of this Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of a Security.
(e) Rights of Holders. Unless otherwise provided
herein, a Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities to Common Stock, and
only to the extent such Securities are deemed to have been converted into Common
Stock pursuant to this Article XIII.
Section 13.02. Conversion Procedure.
(a) To convert a Security (or any portion thereof)
into shares of Common Stock on any date (a "CONVERSION DATE"), a Holder must (i)
complete and manually sign the conversion notice on the back of the Security (or
a facsimile of the conversion notice) specifying the Principal Amount of such
Security such Holder seeks to convert and deliver such notice (the "NOTICE OF
CONVERSION") to a Conversion Agent, (ii) surrender the Security to a Conversion
Agent, (iii) furnish appropriate endorsements and transfer documents if required
by a Registrar or a Conversion Agent and (iv) pay any transfer or similar tax in
accordance with Section 13.04, if required. Anything herein to the contrary
notwithstanding, in the case of Global Securities, a Notice of Conversion shall
be delivered and such Securities shall be surrendered for conversion in
accordance with the rules and procedures of the Depositary as in effect from
time to time.
(b) The Company will, as soon as practicable after a
Conversion Date, but in no event later than three Trading Days following the
delivery of a Notice of Conversion (the "SHARE DELIVERY DATE") (i) provided the
Conversion Agent is participating in the
55
Depositary's Fast Automated Securities Transfer Program, such aggregate number
of shares of Common Stock to which the applicable Holder shall be entitled to
such Holder's or its nominee's or nominees' balance account with the Depositary
through its Deposit Withdrawal Agent Commission system, or (ii) if the
Conversion Agent is not participating in the Depositary's Fast Automated
Securities Transfer Program, issue, or cause to be issued, and deliver to the
Conversion Agent or to such Holder, or such Holder's nominee or nominees,
certificates for the number of full shares of Common Stock, if any, to which
such Holder shall be entitled. The Person or Persons entitled to receive such
Common Stock upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock, as of the close of business on
the applicable Conversion Date; provided, however, that no surrender of a
Security on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided further that such conversion shall be at the Conversion Price
in effect on the Conversion Date as if the stock transfer books of the Company
had not been closed. Upon conversion in full of a Security, such Person shall no
longer be a Holder of such Security. Except as otherwise provided in Section
13.06, no payment or adjustment will be made for dividends or distributions on
shares of Common Stock issued upon conversion of a Security.
Holders converting any Securities or portions thereof shall be
entitled to receive any accrued and unpaid interest on the Principal Amount
being converted as of a Conversion Date to the extent provided for in this
Section 13.02(b). If the Conversion Date occurs between the close of business on
the Record Date and the opening of business on the immediately following
Interest Payment Date, the Company shall pay to the applicable Holder in cash,
on such Interest Payment Date, an amount equal to the accrued and unpaid
interest through the Conversion Date on the Principal Amount of Securities such
Holder is converting; provided, however, if the Company pays such Holder on such
Interest Payment Date an amount equal to the interest otherwise payable to such
Holder as if such Holder had not converted any Security or portion thereof prior
to such Interest Payment Date, such Holder shall promptly pay to the Company an
amount equal to the difference between (1) such interest payment received and
(2) the amount of accrued and unpaid interest through the Conversion Date for
the Principal Amount converted by such Holder.
(c) Company's Failure to Timely Convert. If within
three (3) Trading Days after the delivery by such Holder of a Notice of
Conversion the Company shall, or at the Company's request the Conversion Agent
shall, fail to issue and deliver or caused to be delivered to such Holder, or
such Holder's nominee or nominees, such number of shares of Common Stock to
which such Holder is entitled upon such Holder's conversion of any Securities,
and if on or after such Trading Day such Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by such Holder of shares of Common Stock issuable upon such conversion that
such Holder anticipated receiving from the Company (a "BUY-IN"), then the
Company shall, within three (3) Business Days after such Holder's request and in
such Holder's discretion, either (i) pay cash to such Holder in an amount equal
to such Holder's total purchase price (including brokerage commissions, if any)
for the shares of
56
Common Stock so purchased (the "BUY-IN PRICE"), at which point the Company's
obligation to deliver such certificate (and to issue such Common Stock) shall
terminate, or (ii) promptly honor its obligation to deliver to such Holder a
certificate or certificates representing such Common Stock and pay cash to such
Holder in an amount equal to the excess (if any) of the Buy-In Price over the
product of (A) such number of shares of Common Stock, times (B) the Closing
Price of the Common Stock on the Conversion Date.
(d) If a Holder converts more than one Security at
the same time, the number of shares of Common Stock issuable upon the conversion
shall be based on the aggregate Principal Amount of Securities converted.
(e) The conversion by a Holder following its receipt
of the Fundamental Change Company Notice during the Fundamental Change
Conversion/Repurchase Period shall be a "FUNDAMENTAL CHANGE CONVERSION". In
connection with a Fundamental Change Conversion, a Holder shall be entitled to
receive the Make-Whole Premium with respect to any Principal Amount converted in
accordance with Article XIV.
(f) Upon surrender of a Security that is converted in
part, the Company shall execute, and the Trustee shall authenticate and deliver
to the applicable Holder, as soon as practicable but in no event later than ten
Business Days after receipt of such Security, a new Security equal in Principal
Amount to the unconverted portion of the Security surrendered.
(g) If the last day on which Security may be
converted is not a Business Day in a place where a Conversion Agent is located,
the Securities may be surrendered to that Conversion Agent on the next
succeeding Business Day.
(h) Holders that have already delivered a Fundamental
Change Repurchase Notice with respect to a Security may not surrender such
Security for conversion until the Fundamental Change Repurchase Notice has been
withdrawn in accordance with the procedures set forth in Section 11.07.
(i) The Company shall not effect any conversion of a
Security, and no Holder shall have the right to convert any portion of such
Security, to the extent that after giving effect to such conversion (including
any Make-Whole Premium), such Holder (together with such Holder's affiliates)
would beneficially own in excess of 4.99% of the number of shares of Common
Stock outstanding immediately after giving effect to such conversion (the
"CONVERSION LIMITATION"); provided, however, that the Conversion Limitation
shall not apply to any Initial Purchaser (or any transferee thereof) listed on
Schedule I hereto. For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by such Holder and its affiliates shall
include the number of shares of Common Stock issuable upon conversion of a
Security with respect to which the determination of such sentence is being made,
but shall exclude the number of shares of Common Stock which would be issuable
upon (A) conversion of the remaining, nonconverted portion of any Security
beneficially owned by such Holder or any of its affiliates and (B) exercise or
conversion of the unexercised or nonconverted portion of any other securities of
the Company subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by such Holder or any of its
affiliates. Except as set forth in the preceding sentence, for purposes of this
Section, beneficial ownership
57
shall be calculated in accordance with Section 13(d) of the Exchange Act. For
purposes of this Section 13.02(i), in determining the number of outstanding
shares of Common Stock, such Holder may rely on the number of outstanding shares
of Common Stock as reflected in (x) the Company's most recent Form 10-K, 10-Q or
Form 8-K, as the case may be; (y) a more recent public announcement by the
Company or (z) any other notice by the Company setting forth the number of
shares of Common Stock outstanding. For any reason at any time, upon the written
or oral request of a Holder, the Company shall within three Business Days
confirm orally and in writing to such Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including any Security, by such Holder or its
affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. By written notice to the Company, any Holder may
increase or decrease the Conversion Limitation to any other percentage not in
excess of 9.99% specified in such notice; provided that (i) any such increase
will not be effective until the 61st day after such notice is delivered to the
Company, and (ii) any such increase or decrease will apply only to the Holder
sending such notice and not to any other holder of Securities. Notwithstanding
the foregoing, the Conversion Limitation shall not be applicable (i) on any of
the ten Trading Days up to and including the Stated Maturity, or (ii) on any of
the ten Trading Days up to and including the Effective Date or (iii) during the
Fundamental Change Conversion/Repurchase Period.
Section 13.03. No Fractional Shares. The Company shall not
issue any fraction of a share of Common Stock upon any conversion. If the
issuance would result in the issuance of a fraction of a share of Common Stock,
the Company shall round such fraction of a share of Common Stock up to the
nearest whole share.
Section 13.04. Taxes on Conversion. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issuance of shares of Common Stock upon such conversion.
However, a Holder shall pay any such tax which is due because such Holder
requests the shares of Common Stock to be issued in a name other than such
Holder's name. The Conversion Agent may refuse to deliver the certificate
representing the shares of Common Stock being issued in a name other than a
Holder's name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares of Common Stock are to be issued in a
name other than such Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section 13.05. Company to Provide Stock. (a) The Company
shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock (including after taking into
account any adjustments to the Conversion Price pursuant to Section 13.06).
(b) All shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
(c) The Company will endeavor promptly to comply with
all federal and state securities laws regulating the offer and delivery of
shares of Common Stock upon
58
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on the NYSE, the American Stock Exchange, the Nasdaq
National Market, The Nasdaq SmallCap Market or other over-the-counter market or
such other exchange or market on which the Common Stock is then listed or
quoted. Any Common Stock issued upon conversion of a Security hereunder which at
the time of conversion was a Transfer Restricted Security shall remain a
Transfer Restricted Security.
Section 13.06. Adjustment of Conversion Price. The Conversion
Price shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on
its Common Stock in shares of Common Stock, (ii) make a distribution on its
Common Stock in shares of Common Stock, (iii) subdivide its outstanding Common
Stock into a greater number of shares, or (iv) combine its outstanding Common
Stock into a smaller number of shares, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive that number
of shares of Common Stock which it would have owned had such Security been
converted immediately prior to the happening of such event. An adjustment made
pursuant to this subsection (a) shall become effective on the opening of
business after the record date in the case of a dividend or distribution and
shall become effective on the opening of business after the effective date in
the case of subdivision or combination.
(b) In case the Company shall issue rights, options
or warrants (other than pursuant to a stockholder rights plan) to all or
substantially all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock (or securities convertible into or exercisable
or exchangeable for Common Stock) at a price per share (or having a conversion ,
exercise or exchange price per share) less than the Current Market Price per
share of Common Stock on the record date with respect to such issuance, (or if
no such record date is fixed, the Business Day immediately prior to the date of
announcement of such issuance) (treating the conversion, exercise or exchange
price per share of the securities convertible into or exercisable or
exchangeable for Common Stock as equal to (x) the sum of (i) the price for a
unit of the security convertible into or exercisable or exchangeable for Common
Stock and (ii) any additional consideration initially payable upon the
conversion of such security into or exercise or exchange of such security for
Common Stock divided by (y) the number of shares of Common Stock initially
underlying such security), the Conversion Price in effect shall be adjusted so
that the Conversion Price shall equal the price determined by multiplying the
Conversion Price in effect at the opening of business on the date after such
record date (or if no such record date is fixed, the applicable Business Day) by
a fraction:
(1) the numerator of which shall be the
number of shares of Common Stock outstanding on the close of business on the
record date (or if no such record date is fixed, the date of announcement of
such issuance), plus the number of shares which the aggregate subscription or
purchase price for the total number of shares of Common Stock underlying the
rights options, or warrants so issued (or the aggregate conversion, exercise or
exchange price of the securities so offered) would purchase at such Current
Market Price of the Common Stock; and
59
(2) the denominator of which shall be the
number of shares of Common Stock outstanding at the close of business on the
record date with respect to such issuance (or if no such record date is fixed,
the date immediately prior to the date of announcement of such issuance), plus
the total number of additional shares of Common Stock underlying the rights,
options or warrants so issued.
Such adjustment shall be made successively
whenever any such rights, options or warrants are issued, and shall become
effective on the day following the date of announcement of such issuance.
(c) (i) In case the Company shall distribute to all
or substantially all holders of its Common Stock any shares of Capital Stock of
the Company (other than Common Stock), evidences of indebtedness or other
non-cash assets (including securities of any person other than the Company but
excluding (1) the portion of any dividends or distributions paid in cash, (2)
dividends or distributions referred to in subsection (a) of this Section 13.06
or (3) distributions made in connection with the liquidation, dissolution or
winding up of the Company), or shall distribute to all or substantially all
holders of its Common Stock rights, options or warrants to subscribe for or
purchase any of its securities (excluding those rights, options and warrants
referred to in subsection (b) of this Section 13.06 and also excluding the
distribution of rights to all holders of Common Stock pursuant to a Rights Plan
or the detachment of such rights to the extent set forth in the second following
paragraph), then in each such case the Conversion Price shall be adjusted to
equal the price determined by multiplying the current Conversion Price by a
fraction of which:
(1) the numerator of which shall be the
Current Market Price per share of the Common Stock on such record date, less the
fair market value on such record date (as determined by the Board of Directors,
whose determination shall be conclusive evidence of such fair market value and
which shall be evidenced by an Officer's Certificate delivered to the Trustee
and the Conversion Agent) of the portion of the distributed assets (other than
cash) so distributed applicable to one share of Common Stock (determined on the
basis of the number of shares of Common Stock outstanding on the record date);
and
(2) the denominator of which shall be such
Current Market Price on such record date.
Such adjustment shall be made successively whenever any
such distribution is made and shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
distribution.
(ii) In the event that the Company has in
effect a preferred shares rights plan ("RIGHTS PLAN"), upon conversion of the
Securities into Common Stock, to the extent that the Rights Plan is still in
effect upon such conversion, the Holders will receive, in addition to the Common
Stock, the rights described therein (whether or not the rights have separated
from the Common Stock at the time of conversion), subject to the limitations set
forth in the Rights Plan. If the Rights Plan provides that upon separation of
rights under such plan from the Company's Common Stock that the Holders would
not be entitled to receive any such rights in respect of the Common Stock
issuable upon conversion of the Securities, the
60
Conversion Price will be adjusted as provided in this Section 13.06(c) (with
such separation deemed to be the distribution of such rights), subject to
readjustment in the event of the expiration, termination or redemption of the
rights. Any distribution of rights or warrants pursuant to a Rights Plan that
would allow a Holder to receive upon conversion, in addition to the Common
Stock, the rights described therein (whether or not the rights have separated
from the Common Stock at the time of conversion), shall not constitute a
distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options or warrants distributed
by the Company to all holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company's Capital Stock (either
initially or under certain circumstances), which rights, options or warrants,
until the occurrence of a specified event or events ("TRIGGER EVENT"): (A) are
deemed to be transferred with such shares of Common Stock; (B) are not
exercisable; and (C) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section
13.06 (and no adjustment to the Conversion Price under this Section 13.06 will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights, options and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Price shall be
made under this clause (c) of Section 13.06. If any such right or warrant,
including any such existing rights, options or warrants distributed prior to the
Original Issue Date, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and
record date with respect to new rights, options or warrants with such rights
(and a termination or expiration of the existing rights, options or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Price under this Section 13.06
was made, in the case of any such rights, options or warrants which shall all
have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as though
it were a cash distribution, equal to the per share redemption or repurchase
price received by a holder or holders of Common Stock with respect to such
rights, options or warrants (assuming such holder had retained such rights,
options or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase.
(d) In case the Company or any of its Subsidiaries
shall purchase any shares of the Company's Common Stock by means of a tender
offer, then, effective immediately prior to the opening of business on the day
after the last date (the "EXPIRATION DATE") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time at which
such tenders could have been made on the Expiration Date is hereinafter
sometimes called the "EXPIRATION TIME"), the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on the Expiration
Date by a fraction of which:
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(1) the numerator shall be the product of the
number of shares of Common Stock outstanding (including Purchased Shares but
excluding any shares held in the treasury of the Company) immediately prior to
the Expiration Time multiplied by the Current Market Price per share of the
Common Stock (as determined in accordance with clause (e) of Section 13.06); and
(2) the denominator shall be the sum of (x)
the aggregate consideration (determined as set forth below) payable to
stockholders of the Company based on the acceptance (up to any maximum specified
in the terms of the tender offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "PURCHASED SHARES") and (y) the product
of the number of shares of Common Stock outstanding (less any Purchased Shares
and excluding any shares held in the treasury of the Company) immediately prior
to the Expiration Time and the Current Market Price per share of Common Stock
(as determined in accordance with clause (f) of Section 13.06).
For purposes of this clause (d) of Section 13.06, the
aggregate consideration in any such tender offer shall equal the sum of the
aggregate amount of cash consideration and the aggregate fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee and the Conversion Agent) of any other consideration
payable in such tender offer. In the event that the Company is obligated to
purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such purchases
or any or all such purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would have been in effect based upon
the number of shares actually purchased. If the application of this clause (d)
of Section 13.06 to any tender offer would result in an increase in the
Conversion Price, no adjustment shall be made for such tender offer under this
Section 13.06(d). For purposes of this clause (d) of Section 13.06, the term
"tender offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.
(e) For the purpose of any computation under clauses
(b) and (c) of Section 13.06, the current market price (the "CURRENT MARKET
PRICE") per share of Common Stock on any date shall be deemed to be the average
of the daily Closing Prices for the ten consecutive Trading Days commencing 11
Trading Days before the record date with respect to distributions, issuances or
other events requiring such computation under Section 13.06. For purposes of any
computation under subsection (d) of this Section 13.06, the Current Market Price
per share of Common Stock shall be deemed to be the arithmetic average of the
daily Closing Prices for the ten consecutive Trading Days commencing on the
Trading Day next succeeding the Expiration Date.
(f) For the purpose of this Section 13.06, "record
date" shall mean, with respect to any dividend, distribution or other
transaction or event in which the holders of
62
Common Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(g) In any case in which this Section 13.06 shall
require that an adjustment be made to the Conversion Price, in lieu of the
foregoing adjustment, the Company may, at its option, distribute, concurrently
with the distribution to the holders of the outstanding Common Stock, shares of
Common Stock, rights, options, warrants, any shares of Capital Stock of the
Company (other than Common Stock), evidences of indebtedness or other non-cash
assets (or the fair market value, as reasonably determined by the Board of
Directors of the Company, of the foregoing in cash) that such Holder of
Securities would have been entitled to receive, as applicable, had such Security
been converted immediately prior to the happening of the record date relating to
the event that would have caused such adjustment (without regard to the
Conversion Limitation).
(h) In any case in which this Section 13.06 shall
require that an adjustment be made following a record date, an announcement date
or a Determination Date or Expiration Date, as the case may be, established for
purposes of this Section 13.06, the Company may elect to defer (but only until
five Business Days following the filing by the Company with the Trustee and the
Conversion Agent of the certificate described in Section 13.09) issuing to the
Holder of any Security converted after such record date or announcement date or
Determination Date or Expiration Date the shares of Common Stock and other
capital stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable upon such
conversion only on the basis of the Conversion Rate prior to adjustment; and, in
lieu of the shares the issuance of which is so deferred, the Company shall issue
or cause its transfer agents to issue due bills or other appropriate evidence
prepared by the Company of the right to receive such shares.
Section 13.07. No Adjustment. (a) No adjustment need be made
for issuances of Common Stock pursuant to a Company plan for reinvestment of
dividends or interest or for a change in the par value or a change to no par of
the Common Stock.
(b) To the extent that the Securities become
convertible into the right to receive cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash due.
(c) No adjustment in the Conversion Price shall be
made pursuant to Section 13.06 if the Holders (in their capacity as Holders) may
participate in the transaction that would otherwise give rise to an adjustment
pursuant to Section 13.06.
(d) No adjustment in the Conversion Price shall be
made for issuances of cash dividends or cash distributions, whether periodic,
special, extraordinary, non-recurring or other, which the Holder is entitled to
receive as interest pursuant to Section 12.01(a).
63
(e) Other than as described above in Section 13.06,
no adjustment to the Conversion Price shall be required for any issuance of
Common Stock or convertible or exchangeable securities or rights to purchase
Common Stock or convertible or exchangeable securities.
Section 13.08. Notice of Conversion Price Adjustment. Whenever
the Conversion Price is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment and file with the Trustee and the
Conversion Agent an Officers' Certificate briefly stating the facts requiring
the adjustment and the manner of computing it. Unless and until the Trustee and
the Conversion Agent shall receive an Officers' Certificate setting forth an
adjustment of the Conversion Price, the Trustee and the Conversion Agent may
assume without inquiry that the Conversion Price has not been adjusted and that
the last Conversion Price of which it has knowledge remains in effect.
Section 13.09. Notice of Certain Transactions. In the event
that:
(a) the Company takes any action which would require
an adjustment in the Conversion Price (other than the issuance of dividends in
the form of Common Stock);
(b) the Company consolidates or merges with, or
transfers all or substantially all of its property and assets to, another
corporation and stockholders of the Company must approve the transaction; or
(c) there is a dissolution or liquidation of the
Company,
the Company shall mail to Holders and file with the
Trustee a notice stating the proposed record or effective date, as the case may
be. The Company shall mail the notice at least twenty days before such date.
Failure to mail such notice or any defect therein shall not affect the validity
of any transaction referred to in clause (a), (b) or (c) of this Section 13.09.
Section 13.10. Effect of Reclassification on Conversion
Privilege. If there is any reclassification or change of shares of Common Stock
issuable upon conversion of the Securities (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, or any other change for which an
adjustment is provided in Section 13.06); then the Company's such successor, as
the case may be, shall, as a condition precedent to such reclassification,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then Outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification by a holder of
the number of shares of Common Stock issuable upon conversion of such Security
immediately prior to such reclassification. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article XIII. The provisions of this Section 13.10 shall
similarly apply to successive reclassifications.
Section 13.11. Trustee's Disclaimer. The Trustee and the
Conversion Agent shall have no duty to determine when an adjustment under this
Article XIII should be made, how it
64
should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers' Certificate including the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee and the Conversion Agent pursuant to Section 13.08. The Trustee and the
Conversion Agent make no representation as to the validity or value of any
securities or assets issued upon conversion of Securities and the Trustee shall
not be responsible for the Company's failure to comply with any provisions of
this Article XIII.
The Trustee and the Conversion Agent shall not be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture executed pursuant to Section 13.10, but may accept as
conclusive evidence of the correctness thereof, and shall be fully protected in
relying upon, the Officers' Certificate with respect thereto which the Company
is obligated to file with the Trustee and the Conversion Agent pursuant to
Section 13.10.
Section 13.12. Voluntary Decrease. The Company from time to
time may decrease the Conversion Price by any amount for any period of time if
the period is at least 20 days and if the decrease is irrevocable during the
period if the Board of Directors determines that such decrease would be in the
best interest of the Company or the Board of Directors deems it advisable to
avoid or diminish income tax to holders of shares of Common Stock in connection
with any stock or rights dividend or distribution or similar event, and the
Company provides 15 days prior notice of any increase in the Conversion Price.
Section 13.13. Company Determination Final. Any determination
that the Company or the Board of Directors must make pursuant to this Article
XIII shall be conclusive if made in good faith and in accordance with the
provisions of this Article XIII, absent manifest error, and set forth in a
resolution of the Board of Directors.
ARTICLE XIV
MAKE-WHOLE PREMIUM
Section 14.01. Make-Whole Premium. (a) If a Fundamental Change
occurs, the Company shall pay on the applicable Conversion Date or on the
Fundamental Change Settlement Date, as the case may be, a Make-Whole Premium to
Holders of Securities electing any Fundamental Change Conversion or a
Fundamental Change Repurchase.
(b) The "MAKE-WHOLE PREMIUM" shall be determined by
reference to the table below (the "MAKE-WHOLE PREMIUM TABLE") and is based on
the date that the applicable Fundamental Change becomes effective (the
"EFFECTIVE DATE") and the Stock Price. For purposes of this Agreement, "STOCK
PRICE" means the price paid per share of Common Stock in the transaction
constituting the applicable Fundamental Change, determined as follows: (i) if
holders of Common Stock receive only cash in the Fundamental Change, the Stock
Price shall be the cash amount paid per share of Common Stock; or (ii) in all
other circumstances, the Stock Price shall be the arithmetic average of the
Closing Prices Per Share of the Common Stock on the ten Trading Days prior to,
but not including, the Effective Date.
65
The following table shows what the Make-Whole Premium would be
for various Stock Prices and Effective Dates set forth below, expressed as a
percentage of the Principal Amount of the Securities.
66
MAKE-WHOLE PREMIUM TABLE
(% OF PRINCIPAL AMOUNT)
EFFECTIVE DATE
-----------------------------------------------------------------------------------------------------------------------------------
STOCK PRICE NOVEMBER 18, NOVEMBER 15, NOVEMBER 15, NOVEMBER 15, NOVEMBER 15, NOVEMBER 15, NOVEMBER 15, NOVEMBER 15,
2004 2005 2006 2007 2008 2009 2010 2011
----------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ -----------
$13.70 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
$16.31 8.53 6.89 5.32 4.18 3.04 0.25 0.00 0.00
$19.57 23.67 21.54 19.17 16.71 14.03 10.54 6.54 0.00
$22.83 22.76 20.39 17.69 14.73 11.32 7.30 2.28 0.00
$26.10 22.23 19.72 16.85 13.67 10.01 5.75 0.63 0.00
$29.36 21.92 19.33 16.37 13.08 9.33 5.05 0.16 0.00
$32.62 21.73 19.09 16.09 12.76 8.99 4.74 0.01 0.00
$35.88 21.61 18.95 15.93 12.58 8.81 4.60 0.00 0.00
$39.14 21.53 18.86 15.83 12.47 8.72 4.55 0.00 0.00
$42.41 21.48 18.80 15.77 12.41 8.67 4.52 0.00 0.00
$45.67 21.44 18.76 15.73 12.38 8.64 4.51 0.00 0.00
$48.93 21.42 18.74 15.71 12.36 8.63 4.51 0.00 0.00
67
If the Stock Price is between two Stock Price amounts listed on the Make-Whole
Premium Table or the Effective Date is between two dates listed on the
Make-Whole Premium Table, the Make-Whole Premium shall be determined by linear
interpolation between the amounts set forth in the Make-Whole Premium Table for
the higher and lower Stock Price amounts and the two dates, as applicable, based
on a 365-day or 366-day year, as applicable. If the Stock Price on the Effective
Date exceeds $48.93 per share (subject to adjustment pursuant to Section 13.06),
(the "STOCK PRICE CAP"), the amount of the Make-Whole Premium will be equal to
the Make-Whole Premium as if the Stock Price were $48.93 (subject to adjustment
pursuant to Section 13.06); and if the Stock Price on the Effective Date is less
than or equal to $13.70 per share (subject to adjustment pursuant to Section
13.06), (the "STOCK PRICE THRESHOLD"), no Make-Whole Premium will be paid. The
Stock Prices set forth in the first column are subject to adjustment pursuant to
Section 14.03.
(c) Subject to Section 14.01(d), the Company may pay
the Make-Whole Premium in shares of Common Stock (other than cash paid in lieu
of fractional shares), in cash, in the same form of consideration into which
shares of Common Stock have been converted in connection with the applicable
Fundamental Change or in any combination of the foregoing. The Fundamental
Change Company Notice delivered pursuant to Section 11.06(b) in connection with
the Fundamental Change shall state the percentage of any Make-Whole Premium,
stated in total principal amount as if all Securities then Outstanding shall be
converted or redeemed during the Fundamental Change Conversion/Repurchase
Period, that will, subject to Section 14.01(d), be paid in shares of Common
Stock (which indication shall be irrevocable). If holders of Common Stock have
the right to elect the form of consideration received in a Fundamental Change,
then for purposes of the foregoing the consideration into which a share of
Common Stock has been converted shall be deemed to equal the same percentage of
each form of consideration as encompasses the aggregate consideration
distributed in respect of all shares of Common Stock participating in the
distribution. Unless the Company gives notice to the contrary, the Make-Whole
Premium shall, subject to Section 14.01(d), be paid in shares of Common Stock
(or, if applicable, in the same form of consideration into which shares of
Common Stock have been converted in connection with the applicable Fundamental
Change).
If the Company elects, subject to Section 14.01(d), to pay all
or any portion of the Make-Whole Premium in shares of Common Stock, the number
of shares of Common Stock to be delivered as such payment shall equal the
quotient of (x) the dollar amount of such Make-Whole Premium divided by (y) the
Make-Whole Conversion Price. For purposes of this Agreement, the "MAKE-WHOLE
CONVERSION PRICE" means the price computed as 98% of the arithmetic average of
the Weighted Average Price of the Common Stock during each of the ten (10)
Trading Days ending on the Trading Day immediately preceding the Effective Date.
If the Company elects to pay the Make-Whole Premium in the same form of
consideration used to pay for the shares of the Common Stock in connection with
the applicable Fundamental Change, the value of the consideration to be
delivered in respect of the Make-Whole Premium will be calculated as follows:
(i) securities that are traded on a
United States national securities exchange or approved for quotation on the
Nasdaq National Market, The Nasdaq Small Cap Market or any similar system of
automated dissemination of quotations of securities prices will be based on 98%
of the arithmetic average of the Closing Price of such securities during each of
the ten (10) Trading Days ending on the Trading Day immediately preceding the
68
Effective Date (provided that any securities that are issuable as part of such
consideration shall meet the conditions set forth in Section 14.01(d) as if such
securities were "Common Stock" under that section);
(ii) other securities, assets or property
(other than cash) will be valued on 98% of the arithmetic average of the fair
market value of such securities, assets or property (other than cash) as
determined by two independent nationally recognized investment banks selected by
the Trustee; and
(iii) 100% of any cash.
If a Make-Whole Premium is required, the Company or the
Trustee, at the expense of the Company, shall from time to time appoint an
independent nationally recognized investment bank to serve as calculation agent
with respect calculation of the Make-Whole Premium (the "CALCULATION AGENT").
The Calculation Agent shall, on behalf and upon request by the Company or the
Trustee, calculate (A) the Stock Price and (B) the Make-Whole Premium with
respect to such Stock Price based on the Effective Date specified by the Company
or the Trustee, and shall deliver its calculation of the Stock Price and
Make-Whole Premium to the Company and the Trustee within five (5) Business Days
after the request by the Company or the Trustee. The Company, or at the
Company's request and expense, the Trustee in the name of the Company, (X) shall
notify the Holders of the Stock Price and the estimated Make-Whole Premium per
$1,000 Principal Amount of Securities with respect to a Fundamental Change as
part of the Fundamental Change Company Notice delivered in connection with a
Fundamental Change in accordance with Section 11.06(b) or otherwise in
accordance with the notice provisions of the Indenture and (Y) shall notify the
Holders promptly upon the opening of business on the Effective Date of the
number of shares of Common Stock or the amount of the cash payment (or, at the
option of the Company, other securities, assets or property or cash into which
all or substantially all of the shares of Common Stock have been converted as of
the Effective Date as described above) to be delivered in respect of the
Make-Whole Premium, if any, payable in connection with conversions or
redemptions upon such Fundamental Change.
(d) Provided that the Company has timely given a
Fundamental Change Company Notice containing all the information required under
Section 11.06(b), the Company may elect to pay all or any portion of the
Make-Whole Premium in shares of Common Stock if and only if the following
conditions shall have been satisfied (or waived by the applicable Holder):
(i) from and after the delivery of the
Fundamental Change Company Notice relating to the Make-Whole Premium through the
payment of the Make-Whole Premium, (1) the shares of Common Stock to be issued
in connection with the Make-Whole Premium are (x) either registered, approved
and/or qualified, as applicable, or exempt from any such registration, approval
and qualification, as applicable, under applicable federal and state securities
law such that such shares of Common Stock shall be upon issue validly issued and
delivered in accordance with applicable federal and state securities laws and
not subject to any transfer restrictions under the Securities Act or other
securities laws and (y) listed or quoted for trading on a United States national
securities exchange or approved for quotation on the Nasdaq National Market, The
Nasdaq Small Cap Market or any similar system of automated dissemination of
quotations of securities; and (2) there shall be sufficient authorized but
unissued
69
(or issued but not outstanding) shares of Common Stock to issue the shares of
Common Stock in connection with the Make-Whole Premium, and such shares of
Common Stock will upon issue, be duly and validly issued and fully paid and
nonassessable and free of any preemptive or similar rights; and
(ii) the receipt by the Trustee of an (1)
Officers' Certificate stating that the terms of the issuance of the shares of
Common Stock are in conformity with this Indenture, (2) an Opinion of Counsel to
the effect that the shares of Common Stock to be issued by the Company in
payment of the Fundamental Change Conversion in respect of the Securities have
been duly authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of such Make-Whole Premium will be validly issued,
fully paid and non-assessable and (3) an Officer's Certificate, stating that the
conditions to the issuance of the shares of Common Stock have been satisfied.
In the event of a Fundamental Change where the Company is not
the surviving entity, for each conversion by a Holder after the Effective Date,
such Holder shall receive in lieu of each share of Common Stock payable as part
of the Make-Whole Premium the consideration received in such Fundamental Change
for each share of Common Stock (provided that any securities that are issuable
as part of such consideration shall meet the conditions set forth in this
Section 14.01(d) as if such securities were "Common Stock" under this section).
Promptly after determination of the actual number of shares of
Common Stock to be issued in respect of the Make-Whole Premium, the Company
shall publish a notice containing this information in a newspaper published in
the English language, customarily published each Business Day and of general
circulation in The City of New York or publish such information on the Company's
web site or through such other public medium as the Company may use at that
time.
Section 14.02. Payment of Make-Whole Premium. On or prior to
12:00 noon (New York City time) on the Fundamental Change Settlement Date, the
Company will deposit with the Trustee or with one or more Paying Agents
additional shares of Common Stock, cash and/or other assets or property
sufficient to satisfy the entitlement of the Holders of Securities under Section
14.01. Payment of the entitlement pursuant to Section 14.01 to Holders of
Securities surrendered for conversion or redemption during the Fundamental
Change Conversion/Repurchase Period will be made promptly on the Fundamental
Change Settlement Date, by delivering entitlements to securities, mailing checks
in respect of cash and/or delivering other assets or property for the amount
payable to the Holders of such Securities entitled thereto as they (and their
addresses) shall appear in the Security Register. To the extent that the
aggregate amount of shares of Common Stock, cash and/or other assets or property
deposited by the Company pursuant to this Section exceeds the aggregate
entitlement of the Holders of Securities under Section 14.01 that are converted
or redeemed in respect of the Fundamental Change and are entitled to receive the
Make-Whole Premium, then, promptly after the Fundamental Change Settlement Date,
the Paying Agent shall return any such excess to the Company.
Section 14.03. Adjustment to the Make-Whole Premium. Whenever
the Conversion Price shall be adjusted from time to time by the Company pursuant
to Section 13.06, the Stock Price Threshold and the Stock Price Cap shall be
adjusted, and each of the Stock Prices set forth in the Make-Whole Premium Table
shall be adjusted, by multiplying each such amount
70
by a fraction the numerator of which is the Conversion Price as so adjusted and
the denominator of which is the Conversion Price immediately prior to such
adjustment.
71
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
VECTOR GROUP LTD.
By:
--------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A., as Trustee
By:
--------------------------------------
Name:
Title:
72
EXHIBIT A
FORM OF FACE OF SECURITY
[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 THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. 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 OF THIS SECURITY AGREES FOR THE BENEFIT OF VECTOR
GROUP LTD. THAT (A) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THIS SECURITY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
TO (I) VECTOR GROUP LTD. OR ANY SUBSIDIARY THEREOF, (II) TO A PERSON WHOM 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, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS
REFERRED TO IN CLAUSE (A) ABOVE. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF
THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (A)(IV) ABOVE OR UPON ANY
TRANSFER OF THIS SECURITY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER THE TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING RESTRICTION.
[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 DEPOSITARY 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 DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
A-1
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 DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-2
Vector Group Ltd.
5% Variable Interest Senior Convertible Notes Due 2011
CUSIP NO. 92240M AD 0
U.S. $[ ]
Vector Group Ltd., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "COMPANY"),
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received hereby promises to pay to [ ], or
registered assigns, the principal sum of [ ] United States Dollars ($ ) [INCLUDE
IF SECURITY IS A GLOBAL SECURITY -- (which amount may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, in accordance with the rules and procedures of the
Depositary)] on November 15, 2011 and to pay interest on said principal sum
quarterly on February 15, May 15, August 15 and November 15 of each year
commencing February 15, 2005 at the rate of 5% per annum plus additional
amounts, if any, as provided on the reverse hereof (subject to adjustment and
for the period ending on and including November 15, 2006 a minimum rate of 6
3/4% per annum as set forth on the reverse hereto) to Holders of record on the
immediately preceding February 1, May 1, August 1 and November 1 which interest
has been paid, or if no interest has been paid, from November 18, 2004 until the
Principal Amount is paid or duly made available for payment. On each February
15, May 15, August 15 and November 15, an additional sum shall be payable as
interest on each Security equal to the product of (i) the number of shares of
Common Stock into which such Security was convertible on the immediately
preceding February 1, May 1, August 1 and November 1 for such Interest Payment
Date (without regard to the Conversion Limitation) and (ii) the cash dividends
or cash distributions paid by the Company in cash per share of Common Stock paid
during the three-month period ending on immediately preceding February 1, May 1,
August 1, and November 1. Except as otherwise provided in the Indenture, the
interest payable on this Security pursuant to the Indenture on any February 15,
May 15, August 15 and November 15 will 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 Record Date, which shall be February 1, May 1, August 1 and
November 1 (whether or not a Business Day) next preceding such February 15, May
15, August 15 and November 15 respectively. Payment of the principal of and
interest accrued on this Security shall be made by check mailed to the address
of the Holder of this Security specified in the register of Securities, or, upon
written application by a Holder of an aggregate Principal Amount of Securities
in excess of U.S. $2 million to the Security Registrar setting forth wire
instructions not later than ten days prior to the relevant payment date, such
Holder may receive payment by wire transfer in immediately available funds, in
such lawful money of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
The Issue Date of this Security is [November 18, 2004][date of
issuance of Notes pursuant to Additional Investment Rights].
A-3
Reference is made to the further provisions of this Security
set forth on the reverse hereof, including, without limitation, provisions
giving Holder of the Security the right to require redemption of this Security
on November 15, 2009, the right to convert this Security into Common Stock of
the Company and the right of the Holder of this Security to require the Company
to repurchase this Security and upon certain events, in each case, on the terms
and subject to the limitations referred to on the reverse hereof and as more
fully specified in the Indenture. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place. Capitalized terms
used but not defined herein shall have such meanings as are ascribed to such
terms in the Indenture.
This Security shall be deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be construed in
accordance with and governed by the laws of said State.
This Security shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
VECTOR GROUP LTD.
By:
---------------------------------------
Authorized Signatory
A-4
EXHIBIT B
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of Securities
of the Company, designated as its 5% Variable Interest Senior Convertible Notes
Due 2011 (the "SECURITIES"), all issued or to be issued under and pursuant to an
Indenture, dated as of November 18, 2004 (the "INDENTURE"), between the Company
and Xxxxx Fargo Bank, N.A., as trustee (the "TRUSTEE"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.
The indebtedness evidenced by the Securities is unsecured and
unsubordinated senior indebtedness of the Company and shall rank equally with
the Company's other unsecured and unsubordinated indebtedness. The Company will
not incur or issue any subordinated indebtedness unless such indebtedness is
unsecured and subordinated to the Securities on terms no less favorable than
those applicable to senior indebtedness which constitutes Designated Senior
Indebtedness under the 2001 Indenture. The Securities constitute "Senior
Indebtedness" and the Company has designated the Securities as "Designated
Senior Indebtedness", in each case under the 2001 Indenture.
1. Interest Rate. Interest on the Securities shall be
payable quarterly in arrears on each Interest Payment
Date to Holders of record on the Record Date
immediately preceding such Interest Payment Date.
Interest on the Securities shall accrue at a rate of
5% per annum. On each Interest Payment Date, an
additional sum shall be payable as interest on each
Security equal to the product of (i) the number of
shares of Common Stock into which such Security was
convertible on the Record Date for such Interest
Payment Date (without regard to the Conversion
Limitation) and (ii) the cash dividends or cash
distributions, whether periodic, special,
extraordinary, non-recurring or other, paid by the
Company in cash per share of Common Stock during the
three-month period ending on such Record Date (all
such determinations to be appropriately adjusted for
any stock dividend, stock split, stock combination or
other transaction during the applicable calculation
period). Notwithstanding the foregoing, during the
period from November 18, 2004 to and including
November 15, 2006, interest on the Securities shall
accrue at the rate of 6 3/4% per annum if such rate
would produce a greater amount of interest payable on
any Interest Payment Date which includes any portion
of such period than would result under the first four
sentences of this paragraph 1. Interest will be
computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the Securities
shall accrue from the most recent date to which
interest has been paid, or if no interest has been
paid, from the Original Issue Date, until the
Principal Amount is paid or duly made available for
payment.
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2. Redemption Right of the Holder. No sinking fund is
provided for the Securities. The Company shall have
no right at its option to redeem the Securities at
any time prior to the Stated Maturity. Subject to the
terms and conditions of the Indenture, the Company
shall redeem prior to the Stated Maturity any
Securities which Holders elect for redemption in
accordance with the Indenture on the Redemption Date.
Each Holder making an election shall, by notice given
in accordance with in accordance with the terms of
the Indenture, have the right to have its Securities
redeemed by the Company, in whole or in part, on the
Redemption Date at the Redemption Price; provided,
however, that each Holder must redeem on the
Redemption Date an amount equal to such Holder's
Minimum Redemption Amount.
3. Applicable High Yield Discount Obligation.
Notwithstanding the preceding paragraph 2, if the sum
of each Holder's total Minimum Redemption Amount
would, but for this provision, exceed the Maximum
Accrual, then all accrued and unpaid interest, and if
necessary the principal amount of the Securities, in
excess of an amount equal to the Maximum Accrual
shall be paid in cash by the Company to the Holders
on the Redemption Date and at the end of any accrual
period thereafter (as defined in section 1272(a)(5)
of the Code) to prevent the Securities from being
treated as an "Applicable High Yield Discount
Obligation" within the meaning of section 163(i)(l)
of the Code.
4. Repurchase by the Company at the Option of the Holder
Upon a Fundamental Change. Subject to the terms and
conditions of the Indenture, the Company shall become
obligated, at the option of the Holder, to repurchase
the Securities if a Fundamental Change occurs at any
time prior to the Stated Maturity at the Fundamental
Change Repurchase Price, (which Fundamental Change
Repurchase Price will be paid in cash) plus any
Make-Whole Premium required by the terms of the
Indenture on the Fundamental Change Settlement Date.
5. Withdrawal of Fundamental Change Repurchase Notice.
Holders have the right to withdraw, in whole or in
part, any Fundamental Change Repurchase Notice, by
delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the
Indenture.
6. Payment of Redemption Price and Fundamental Change
Repurchase Price. If cash sufficient to pay the
Redemption Price or Fundamental Change Repurchase
Price (plus any Make-Whole Premium required by the
terms of the Indenture), as the case may be, of all
Securities or portions thereof to be redeemed or
repurchased on the Redemption Date or on a
Fundamental Change Settlement Date, as the case may
be, is deposited with the Paying Agent on the
Business Day prior to the Redemption Date or the
Fundamental Change Settlement Date, as the case may
be, the Securities to be redeemed or repurchased will
cease to be outstanding and
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interest and Registration Default Payments, if any,
will cease to accrue on such Securities (or portions
thereof) immediately after such Redemption Date or
Fundamental Change Settlement Date, as the case may
be, and the Holder thereof shall have no other rights
as such (other than the right to receive the
Redemption Price or Fundamental Change Repurchase
Price (plus any Make-Whole Premium required by the
terms of the Indenture), as the case may be, upon
surrender of such Security).
7. Conversion. Subject to the terms and conditions of
the Indenture, at any time or times after the Issue
Date, a Holder of a Security may convert the
Principal Amount of such Security (or any portion
thereof) into shares of the Company's common stock at
the Conversion Price. The Conversion Price in effect
at any given time is subject to adjustment. A Holder
may convert fewer than all of such Holder's
Securities so long as the Securities converted are an
integral multiple of $1,000 Principal Amount. Holders
converting any Securities or portions thereof shall
be entitled to receive any accrued and unpaid
interest on the Principal Amount being converted as
of the Conversion Date to the extent provided for in
the Indenture. If the Conversion Date occurs between
the close of business on the Record Date and the
opening of business on the immediately following
Interest Payment Date, the Company shall pay to the
applicable Holder in cash, on such Interest Payment
Date, an amount equal to the accrued and unpaid
interest through the Conversion Date on the Principal
Amount of Securities such Holder is converting;
provided, however, if the Company pays such Holder on
such Interest Payment Date an amount equal to the
interest otherwise payable to such Holder as if such
Holder had not converted any Security or portion
thereof prior to such Interest Payment Date, such
Holder shall promptly pay to the Company an amount
equal to the difference between (1) such interest
payment received and (2) the amount of accrued and
unpaid interest through the Conversion Date for the
Principal Amount converted by such Holder.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a
deposit or withdrawal of an interest in this Security, including an exchange,
transfer, repurchase or conversion of this Security in part only, the Trustee,
as custodian of the Depositary, shall make an adjustment on its records to
reflect such deposit or withdrawal in accordance with the rules and procedures
of the Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- 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 (the "EXCHANGE ACT"), upon the request of a Holder or any
beneficial owner of a Restricted Security or holder or beneficial owner of
shares of Common Stock issued upon conversion thereof, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) and
any reports required to be filed by them under the Exchange Act or Securities
Act (as defined below) to such Holder or any beneficial owner of Restricted
Securities, or holder or beneficial owner of shares of Common Stock issued upon
conversion thereof, or to a prospective purchaser of any such
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security designated by any such 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") in connection with the
resale of any such security. "RULE 144A INFORMATION" shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).]
If an Event of Default shall occur and be continuing, the
Principal Amount plus accrued and unpaid interest and Registration Default
Payments, if any, through such date on all the Securities may be declared due
and payable in the manner and with the effect provided in the Indenture.
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 consent of the
Majority Holders. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate Principal Amount of the Outstanding
Securities, 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 any provision of or applicable to this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
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 with respect to the
Securities, 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 as Trustee and offered
the Trustee reasonable indemnity satisfactory to it, the Trustee shall not have
received from the Majority Holders a direction inconsistent with such request,
and the Trustee shall have failed to institute any such proceeding, 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 said principal hereof or interest hereon on or
after the respective due dates expressed herein or for the enforcement of any
conversion right.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount, the
Redemption Price or Fundamental Change Repurchase Price (plus any Make-Whole
Premium required by the terms of the Indenture) of or interest and Registration
Default Payments, if any, on, this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security
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for registration of transfer at the office or agency of the Company in 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.
The Securities are issuable only in registered form in
denominations of $1,000 and any integral multiple of $1,000 above that amount,
as provided in the Indenture and subject to certain limitations therein set
forth. Securities are exchangeable for a like aggregate Principal Amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
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
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
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Date: Signed:
------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:________________________________________________________
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act, as amended (the "Securities Act"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date set forth on the
face of this Security, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that this Security is being transferred:
[Check One]
(1) _____ to the Company or a Subsidiary thereof; or
(2) _____ to a "Qualified Institutional Buyer" pursuant to and in compliance
with Rule 144A under the Securities Act; or
(3) _____ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act.
Unless one of the above boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof, provided that if box (3) is checked,
the Company may require, prior to registering any such transfer of the
Securities, in its sole discretion, such legal opinions, certifications and
other information as the Company may reasonably request to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Security Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.11 of the Indenture shall have
been satisfied.
Date: Signed:
------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-7
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: Signed:
------------------------------
NOTICE: To be executed by an executive officer.
B-8
NOTICE OF CONVERSION
If you want to convert this Security into Common Stock of the
Company, check the box:
To convert only part of this Security, state the Principal
Amount to be converted (which must be $1,000 or an integral multiple of $1,000):
$
If you want the stock certificate made out in another person's
name, fill in the form below:
(Insert other person's social security or tax ID no.)
(Print or type other person's name, address and zip code)
Account Number: _________________________________
(if electronic book entry transfer)
Transaction Code Number: __________________________
(if electronic book entry transfer)
Notwithstanding anything to the contrary contained herein,
this Notice of Conversion shall constitute a representation by the holder of the
Security submitting this Notice of Conversion that, after giving effect to the
conversion provided for in this Notice of Conversion, such holder (together with
its affiliates) will not have beneficial ownership (together with the beneficial
ownership of such Person's affiliates) of a number of shares of Common Stock
which exceeds the maximum percentage of the total outstanding shares of Common
Stock as determined pursuant to the provisions of Section 13.02(i) of the
Indenture.
Date: Signed:
------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-9
EXHIBIT C
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Xxxxx Fargo Bank, N.A., as Trustee, certifies that this is one
of the Securities referred to in the within-mentioned Indenture.
Date: XXXXX FARGO BANK, N.A., as Trustee
By:
----------------------------------------
Authorized Signatory
X-0
XXXXXXX X
XXXX XX XXXXXXXXXXX XXXXXX XXXXXXXXXX NOTICE
, 20
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Attention:
Re: Vector Group Ltd. (the "COMPANY")
5% Variable Interest Senior Convertible Notes Due 2011
This is a Fundamental Change Repurchase Notice as defined in Section 11.06 of
the Indenture dated as of November 18, 2004 (the "INDENTURE") between the
Company and Xxxxx Fargo Bank, N.A., as Trustee. Terms used but not defined
herein shall have the meanings ascribed to them in the Indenture.
Certificate No(s). of Securities:
I intend to deliver the following aggregate Principal Amount of Securities for
purchase by the Company pursuant to Section 11.06 of the Indenture (in multiples
of $1,000):
$
I hereby agree that the Securities will be purchased as of the Fundamental
Change Settlement Date pursuant to the terms and conditions thereof and of the
Indenture.
Signed:
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