1
Exhibit 4-3
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ANALOG DEVICES, INC.
AND
STATE STREET BANK AND TRUST COMPANY
Trustee
____________________
INDENTURE
Dated as of December 18, 1995
____________________
$200,000,000
(With an Over-Allotment option for an
Additional $30,000,000)
3 1/2% Convertible Subordinated Notes due December 1, 2000
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Analog Devices, Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of December 18, 1995
Trust Indenture Indenture
Act Section Section
--------------- ---------
[SECTION] 310(a)(1) ............................ 6.9
(a)(2) ............................ 6.9
(a)(3) ............................ Not Applicable
(a)(4) ............................ Not Applicable
(b) ............................ 6.8
6.1
[SECTION] 311(a) ............................ 6.13
(b) ............................ 6.13
[SECTION] 312(a) ............................ 7.1
7.2(a)
(b) ............................ 7.2(b)
(c) ............................ 7.2(c)
[SECTION] 313(a) ............................ 7.3(a)
(b) ............................ 7.3(a)
(c) ............................ 7.3(a)
(d) ............................ 7.3(b)
[SECTION] 314(a) ............................ 7.4
(b) ............................ Not Applicable
(c)(1) ............................ 1.2
(c)(2) ............................ 1.2
(c)(3) ............................ Not Applicable
(d) ............................ Not Applicable
(e) ............................ 1.2
[SECTION] 315(a) ............................ 6.1(a)
(b) ............................ 6.2
7.3(a)(6)
(c) ............................ 6.1(b)
(d) ............................ 6.1(c)
(d)(1) ............................ 6.1(a)(1)
(d)(2) ............................ 6.1(c)(2)
(d)(3) ............................ 6.1(c)(3)
(e) ............................ 5.14
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[SECTION] 316(a)(1)(A) ............................ 5.12
(a)(1)(B) ............................ 5.13
(a)(2) ............................ Not Applicable
(b) ............................ 5.8
[SECTION] 317(a)(1) ............................ 5.3
(a)(2) ............................ 5.4
(b) ............................ 10.3
[SECTION] 318(a) ............................ 1.7
____________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS*
Page
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Parties................................................... 1
Recitals of the Company................................... 1
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION................. 1
Section 1.1 Definitions............................ 1
Act.............................................. 2
Affiliate........................................ 2
Authenticating Agent............................. 2
Board of Directors............................... 2
Board Resolution................................. 2
Business Day..................................... 2
Closing Price.................................... 3
Commission....................................... 3
Common Stock..................................... 3
Company.......................................... 4
Company Request or Company Order................. 4
Corporate Trust Office........................... 4
Corporation...................................... 4
Defaulted Interest............................... 4
Event of Default................................. 4
Holder........................................... 4
Indenture........................................ 4
Interest Payment Date............................ 4
Maturity......................................... 4
Officers' Certificate............................ 4
Opinion of Counsel............................... 5
Outstanding...................................... 5
Paying Agent..................................... 6
Person........................................... 6
Predecessor Security............................. 6
Redemption Date.................................. 6
Redemption Price................................. 6
Regular Record Date.............................. 6
Responsible Officer.............................. 6
Security Register and Security Registrar......... 6
Senior Indebtedness.............................. 6
Special Record Date.............................. 6
Stated Maturity.................................. 7
______________________
* Note: This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.
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Page
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Subsidiary....................................... 7
Trading Day...................................... 7
Trustee.......................................... 7
Trust Indenture Act.............................. 7
Vice President................................... 7
Section 1.2 Compliance Certificates and Opinions... 7
Section 1.3 Form of Documents Delivered to
Trustee................................ 8
Section 1.4 Acts of Holders........................ 9
Section 1.5 Notices, Etc., to Trustee and
Company................................ 11
Section 1.6 Notice to Holders; Waiver.............. 11
Section 1.7 Conflict with Trust Indenture Act...... 12
Section 1.8 Effect of Headings and Table of
Contents............................... 12
Section 1.9 Successors and Assigns................. 12
Section 1.10 Separability Clause.................... 12
Section 1.11 Benefits of Indenture.................. 12
Section 1.12 Governing Law.......................... 12
Section 1.13 Legal Holidays......................... 12
ARTICLE 2 SECURITY FORMS.............................. 13
Section 2.1 Forms Generally........................ 13
Section 2.2 Form of Face of Security............... 13
Section 2.3 Form of Reverse of Security............ 15
Section 2.4 Form of Trustee's Certificate of
Authentication......................... 19
Section 2.5 Form of Conversion Notice.............. 19
ARTICLE 3 THE SECURITIES.............................. 21
Section 3.1 Title and Terms........................ 21
Section 3.2 Denominations.......................... 22
Section 3.3 Execution, Authentication, Delivery
and Dating............................. 22
Section 3.4 Temporary Securities................... 22
Section 3.5 Registration; Registration of
Transfer and Exchange.................. 23
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities...................... 24
Section 3.7 Payment of Interest; Interest Rights
Preserved.............................. 25
Section 3.8 Persons Deemed Owners.................. 27
Section 3.9 Cancellation........................... 27
Section 3.10 Computation of Interest................ 27
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ARTICLE 4 SATISFACTION AND DISCHARGE.................. 27
Section 4.1 Satisfaction and Discharge of
Indenture.............................. 27
Section 4.2 Application of Trust Money............. 29
ARTICLE 5 REMEDIES.................................... 29
Section 5.1 Events of Default...................... 29
Section 5.2 Acceleration of Maturity; Rescission
and Annulment.......................... 31
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee............. 32
Section 5.4 Trustee May File Proofs of Claim....... 33
Section 5.5 Trustee May Enforce Claims
Without Possession of Securities....... 34
Section 5.6 Application of Money Collected......... 34
Section 5.7 Limitation on Suits.................... 34
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert................ 35
Section 5.9 Restoration of Rights and Remedies..... 36
Section 5.10 Rights and Remedies Cumulative......... 36
Section 5.11 Delay or Omission Not Waiver........... 36
Section 5.12 Control by Holders..................... 36
Section 5.13 Waiver of Past Defaults................ 37
Section 5.14 Undertaking for Costs.................. 37
Section 5.15 Waiver of Stay or Extension Laws....... 38
ARTICLE 6 THE TRUSTEE................................. 38
Section 6.1 Certain Duties and Responsibilities.... 38
Section 6.2 Notice of Defaults..................... 39
Section 6.3 Certain Rights of Trustee.............. 40
Section 6.4 Not Responsible for Recitals
or Issuance of Securities.............. 41
Section 6.5 May Hold Securities.................... 41
Section 6.6 Money Held in Trust.................... 41
Section 6.7 Compensation and Reimbursement......... 42
Section 6.8 Disqualification; Conflicting
Interests.............................. 42
Section 6.9 Corporate Trustee Required;
Eligibility............................ 42
Section 6.10 Resignation and Removal; Appointment
of Successor........................... 43
Section 6.11 Acceptance of Appointment by
Successor.............................. 44
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business................. 45
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Section 6.13 Preferential Collection of Claims
Against Company........................ 45
Section 6.14 Appointment of Authenticating Agent.... 45
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY................................. 47
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders................... 47
Section 7.2 Preservation of Information;
Communications to Holders.............. 48
Section 7.3 Reports by Trustee..................... 48
Section 7.4 Reports by Company..................... 48
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE........................... 49
Section 8.1 Company May Consolidate, Etc., Only
on Certain Terms....................... 49
Section 8.2 Successor Substituted.................. 50
ARTICLE 9 SUPPLEMENTAL INDENTURES..................... 50
Section 9.1 Supplemental Indentures Without
Consent of Holders..................... 50
Section 9.2 Supplemental Indentures with Consent
of Holders............................. 51
Section 9.3 Execution of Supplemental Indentures... 52
Section 9.4 Effect of Supplemental Indentures...... 52
Section 9.5 Conformity with Trust Indenture Act.... 52
Section 9.6 Reference in Securities to
Supplemental Indentures................ 52
ARTICLE 10 COVENANTS................................... 53
Section 10.1 Payment of Principal, Premium and
Interest............................... 53
Section 10.2 Maintenance of Office or Agency........ 53
Section 10.3 Money for Security Payments to be
Held in Trust.......................... 53
Section 10.4 Existence.............................. 55
Section 10.5 Maintenance of Properties.............. 55
Section 10.6 Payment of Taxes and Other Claims...... 56
Section 10.7 Statement by Officers as to Default.... 56
Section 10.8 Waiver of Certain Covenants............ 56
ARTICLE 11 REDEMPTION OF SECURITIES.................... 57
Section 11.1 Right of Redemption.................... 57
Section 11.2 Applicability of Article............... 57
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Section 11.3 Election to Redeem; Notice to
Trustee................................ 57
Section 11.4 Selection by Trustee of Securities to
Be Redeemed............................ 57
Section 11.5 Notice of Redemption................... 58
Section 11.6 Deposit of Redemption Price............ 59
Section 11.7 Securities Payable on Redemption
Date................................... 59
Section 11.8 Securities Redeemed in Part............ 60
ARTICLE 12 CONVERSION OF SECURITIES.................... 60
Section 12.1 Conversion Privilege and Conversion
Price.................................. 60
Section 12.2 Exercise of Conversion Privilege....... 61
Section 12.3 Fractions of Shares.................... 62
Section 12.4 Adjustment of Conversion Price......... 62
Section 12.5 Notice of Adjustments of Conversion
Price.................................. 67
Section 12.6 Notice of Certain Corporate Action..... 68
Section 12.7 Company to Reserve Common Stock........ 69
Section 12.8 Taxes on Conversions................... 69
Section 12.9 Covenant as to Common Stock............ 69
Section 12.10 Cancellation of Converted Securities... 69
Section 12.11 Provisions in Case of
Consolidation, Merger or Sale of
Assets................................. 69
ARTICLE 13 SUBORDINATION OF SECURITIES................. 70
Section 13.1 Securities Subordinated to Senior
Indebtedness........................... 70
Section 13.2 No Payments in Certain
Circumstances; Payment Over of
Proceeds Upon Dissolution, Etc......... 71
Section 13.3 Notice to Trustee of Specified
Events; Reliance on Certificate of
Liquidating Agent...................... 73
Section 13.4 Trustee to Effectuate Subordination.... 74
Section 13.5 Trustee Not Charged with Knowledge
of Prohibition......................... 75
Section 13.6 Rights of Trustee as Holder of
Senior Indebtedness.................... 75
Section 13.7 Trustee Not Fiduciary for Holders
of Senior Indebtedness................. 75
Section 13.8 Article Applicable to Paying Agent..... 76
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ARTICLE 14 REPURCHASE OF SECURITIES AT THE OPTION
OF THE HOLDER UPON A CHANGE IN CONTROL...... 76
Section 14.1 Right to Require Repurchase............ 76
Section 14.2 Notices; Method of Exercising
Repurchase Right, Etc.................. 76
Section 14.3 Certain Definitions.................... 78
TESTIMONIUM................................................ 81
SIGNATURES AND SEALS....................................... 81
ACKNOWLEDGMENTS............................................ 00
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XXXXXXXXX, dated as of December 18, 1995, between Analog
Devices, Inc., a corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts (herein called the
"Company"), having its principal office at Xxx Xxxxxxxxxx Xxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, and State Street Bank and Trust
Company, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 3 1/2% Convertible Subordinated Notes due December 1, 2000
(herein called the "Securities") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and
to make this Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
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(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of this instrument; and
(4) 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.
Certain terms, used principally in Articles Six, Twelve and
Fourteen, are defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 1.4.
"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.
"Authenticating Agent" means any Person authorized by
the Trustee to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in the City of New York or the city in which the
Corporate Trust Office of the Trustee is located are authorized or
obligated by law or executive order to close.
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"Closing Price" for any security for any day means the
last reported sale price of such security regular way on such day
or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way
on such day, in either case on the New York Stock Exchange or, if
the security is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which
the security is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
Nasdaq National Market or Nasdaq or, if the security is not listed
or admitted to trading on any national securities exchange or
quoted on such National Market or Nasdaq, the average of the
closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose. If the security is
not listed or admitted to trading on any national securities
exchange, quoted on such National Market or Nasdaq or listed in
any list of bid and asked prices in the over-the-counter market,
"Closing Price" shall mean the fair market value of the security
as determined in good faith by the Board of Directors and
evidenced by a Board Resolution.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company. However, subject to the
provisions of Section 12.11, shares issuable on conversion of
Securities and shares used to pay the Repurchase Price pursuant to
Section 14.1 shall include only shares of the class designated as
Common Stock of the Company at the date of this instrument or
shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one
such resulting class, the shares of each such class then so
issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
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"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 President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of
the Trustee at which at any particular time its corporate trust
business shall be administered. Initially, the Corporate Trust
Office of the Trustee is located at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attn: Corporate Trust Department.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 3.7.
"Event of Default" has the meaning specified in
Section 5.1.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"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.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security becomes due
and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption,
obligation to repurchase or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be acceptable to
the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities 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, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of
the requisite principal amount of 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 the Trustee 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. The Trustee may require, and
may conclusively rely upon, an Officers' Certificate as to whether
or not any Securities are so owned.
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"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the May 15 or November 15 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Responsible Officer", when used with respect to the
Trustee, means any officer assigned to and working in the
corporate trust department of the Trustee, or any other officer of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Senior Indebtedness" shall have the meaning set forth
in Section 13.1.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to
Section 3.7.
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"Stated Maturity", when used with respect to any
Security or any installment of interest thereon, means the date
specified in such Security as the fixed date on which the
principal of such Security or such installment of interest is due
and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other subsidiaries,
or by the Company and one or more other subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Trading Day" means, with respect to any security, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any
day on which securities are not traded on the exchange or market
on which such security is traded.
"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.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, except as provided in Section 9.5.
"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".
Section 1.2 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 an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
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Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 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 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.
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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 1.4 Acts of Holders.
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(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
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) 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 deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is
made upon such Security.
-9-
19
(e) Except for matters arising under Article V (in which
event any record date shall be set by the Trustee), the Company
may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date (as defined below) by Holders of
the requisite principal amounts of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities on the date such action
is taken. Promptly after receiving written notice of a record
date set by the Company pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this
Section 1.4(e), the party hereto which sets such record date may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities in the manner
set forth in Section 1.6, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section 1.4(e), the party hereto
which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding
the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
-10-
20
Section 1.5 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,
(1) 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, Attention: 1995 Analog Devices, Inc. Indenture, or
(2) 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.
Section 1.6 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 his
address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders. 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.
-11-
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Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act,
such required provision shall control.
Section 1.8 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 effect the
construction hereof.
Section 1.9 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 Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
Section 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 successors hereunder, the holders of Senior Indebtedness
and the Holders of Securities, 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 Commonwealth of
Massachusetts.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any security or the last date on which a
Holder has the right to convert his Securities shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal
(and premium, if any) or conversion of the Securities need not be
made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest
-12-
22
Payment Date or Redemption Date, or at the Stated Maturity, or on
such last day for conversion, PROVIDED that no interest shall
accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally.
---------------
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted
by the rules of any Securities exchange on which the Securities
may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2 Form of Face of Security.
------------------------
Analog Devices, Inc.
3 1/2% Convertible Subordinated Note
due December 1, 2000
No. $
------------ ------------
Analog Devices, Inc., a corporation duly organized and
existing under the laws of Massachusetts (herein called the
"Company", which term includes any successor person under the
Indenture hereinafter referred to), for value received hereby
promises to pay to _____________, or registered assigns, the
principal sum of _______________ Dollars on December 1, 2000, and
to pay interest thereon from December 18, 1995 or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on June 1 and December 1 in each
year, commencing June 1, 1996, at the rate of 3 1/2% per annum,
-13-
23
until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the May
15 or November 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities not less than 10 days
prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of
(and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose
in The Borough of Manhattan, the City of New York or the city in
which the Corporate Trust Office of the Trustee is located, in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: ANALOG DEVICES, INC.
Attest: __________________ By: __________________
-14-
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Section 2.3 Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities
of the Company designated as its 3 1/2% Convertible Subordinated
Notes due December 1, 2000 (herein called the "Securities"),
limited in aggregate principal amount to $200,000,000 (except for
such additional principal amounts, not to exceed $30,000,000, of
Securities issued to cover over-allotments in the initial public
offering of the Securities) issued and to be issued under an
Indenture, dated as of December 18, 1995 (herein called the
"Indenture"), between the Company and State Street Bank and Trust
Company, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at his option,
at any time after 60 days from the latest date of original
issuance of the Securities and on or before the close of business
on December 1, 2000, or in case this Security or a portion hereof
is called for redemption, then in respect of this Security or such
portion hereof until and including, but (unless the Company
defaults in making the payment due upon redemption) not after, the
close of business on the fifth Business Day prior to the
Redemption Date, to convert this Security (or any portion of the
principal amount hereof which is $1,000 or an integral multiple
thereof), at the principal amount hereof, or of such portion, into
fully paid and non-assessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the
Company at a conversion price equal to $41 7/8 for each share of
Common Stock (or at the current adjusted conversion price if an
adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the
Company or in blank, to the Company at its office or agency in The
Borough of Manhattan, the City of New York or the city in which
the Corporate Trust Office of the Trustee is located, accompanied
by written notice to the Company that the Holder hereof elects to
convert this Security, or if less than the entire principal amount
hereof is to be converted, the portion hereof to be converted,
and, in case such surrender shall be made during the period from
the close of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business on such
Interest Payment Date (the "Interest Period"), also accompanied by
payment in New York Clearing House Funds or other funds acceptable
-15-
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to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security
then being converted; except that in the case of Securities or
portions thereof that have been called for redemption and,
pursuant to Section 12.1 of the Indenture, as a result of such
redemption the right to convert such Securities terminates during
the Interest Period, any such Securities surrendered for
conversion during such Interest Period need not be accompanied by
payment in an amount equal to such interest. Subject to the
aforesaid requirement for payment and, in the case of a conversion
after the Regular Record Date next preceding any Interest Payment
Date and on or before such Interest Payment Date, to the right of
the Holder of Record of this Security (or any Predecessor
Security) at such Regular Record Date to receive an installment of
interest (with certain exceptions provided in the Indenture), no
payment or adjustment is to be made on conversion for interest
accrued hereon or for dividends on the Common Stock issued on
conversion. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but instead of
any fractional interest the Company shall pay a cash adjustment as
provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the transfer of
substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be
convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the
consolidation, merger or transfer by a holder of the number of
shares of Common stock into which this Security might have been
converted immediately prior to such consolidation, merger or
transfer (assuming such holder of Common Stock failed to exercise
any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares).
The Securities are subject to redemption upon not less than
30 days' nor more than 60 days' notice by mail, at any time on or
after December 1, 1998, as a whole or in part, at the election of
the Company. The Redemption Prices (expressed as percentages of
the principal amount) beginning December 1 of the years indicated
are as follows:
Redemption
Year Price
---- ----------
1998 101.4%
1999 100.7%
-16-
26
and thereafter at a Redemption Price equal to 100% of the
principal amount, together in the case of any such redemption with
accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
Upon a Change in Control (as defined in the Indenture), the
Company will be required to offer to repurchase all or part of the
Securities at 100% of their principal amount plus accrued
interest. The Company shall pay the repurchase price in cash.
In the event of redemption or conversion of this Security in
part only, a new Security or Securities for the unredeemed or
unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness,
and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the
Trustee as his attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable 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 Holders of not less than a
majority in aggregate principal amount of the Securities at the
time outstanding. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
-17-
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Security and of any Security issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
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 of (and premium, if any) and interest on this Security
at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the
Indenture.
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 for registration of transfer at the office or agency of
the Company in The Borough of Manhattan, The City of New York or
the city in which the Corporate Trust Office of the Trustee is
located, 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 without
coupons in denominations of $1,000 and any integral multiple
thereof. 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 to a Holder 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 is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
-18-
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Section 2.4 Form of Trustee's Certificate of
--------------------------------
Authentication.
--------------
This is one of the Securities referred to in the
within-mentioned Indenture.
State Street Bank and Trust Company
as Trustee
By ____________________________
Authorized signatory
Section 2.5 Form of Conversion Notice.
-------------------------
To Analog Devices, Inc.:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof
(which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Analog Devices, Inc.,
in accordance with the terms of the Indenture referred to in this
Security, and directs that the certificate or certificates for the
shares issuable and deliverable upon the conversion, together with
any check in payment for fractional shares and any Securities
representing any unconverted principal amount hereof, be issued in
the name of and delivered to the undersigned, unless a different
name has been indicated below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will
pay any transfer taxes payable with respect thereto. Any amount
required to be paid by the undersigned on account of interest
accompanies this Security.
Principal Amount to be converted
(in an integral multiple of $1,000, if less than all):
$_______________________
-19-
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FILL IN FOR REGISTRATION OF SHARES:
----------------------------------
----------------------------------------------------------------------
Name
----------------------------------------------------------------------
Address
----------------------------------------------------------------------
please print name and address (including zip code)
Please Insert Social Security or
Other Taxpayer Identifying
Number
_________________________
_________________________
Dated: ________________ Signature __________________________
(must conform in all
respects to name of Holder
appearing on face hereof)
Fill in for registration of shares of Common stock and
Securities if to be issued otherwise than to the Holder:
_____________________________ Social Security or Other
(Name) Taxpayer Identifying Number:
_____________________________
(Name)
Signature Guaranteed
By:
_____________________________ Member Signature Guaranty
please print name and address Medallion Program
(including zip code)
-20-
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ARTICLE 3
THE SECURITIES
Section 3.1 Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$200,000,000 (except for such additional principal amounts, not to
exceed $30,000,000, of Securities issued to cover over-allotments
in the initial public offering of the Securities), except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.4, 3.5, 3.6, 9.6 or 12.2.
The Securities shall be known and designated as the "3 1/2%
Convertible Subordinated Notes due December 1, 2000" of the
Company. Their final Stated Maturity shall be December 1, 2000,
and they shall bear interest at the rate of 3 1/2% per annum, from
December 18, 1995 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may
be, payable semi-annually on June 1 and December 1, commencing
June 1, 1996 until the principal thereof is paid or made available
for payment.
The principal of (and premiums if any) and interest on the
Securities shall be payable at the office or agency of the Company
in The Borough of Manhattan, the City of New York or the city in
which the Corporate Trust Office of the Trustee is located
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 payment of interest may be made
by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article 11.
The Securities shall be convertible as provided in
Article 12.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article 13.
The Securities shall be subject to repurchase at the option
of the Holder as provided in Article 14.
-21-
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Section 3.2 Denominations.
-------------
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any
integral multiple thereof.
Section 3.3 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, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Securities; and the Trustee in accordance with such
Company Order shall authenticate and deliver such Securities as 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 3.4 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
-22-
32
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of
the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
Section 3.5 Registration; Registration of
-----------------------------
Transfer and Exchange.
---------------------
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 agent designated pursuant to
Section 10.2 being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to
Section 10.2 for such purpose, 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.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
-23-
33
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.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder 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 3.4, 9.6, 11.8 or 12.2 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities selected for redemption under
Section 11.4 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
Section 3.6 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.
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 upon its request 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.
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In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided
in clause (l) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
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aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
In the case of any Security which is converted after any
Regular Record Date but on or before the next Interest Payment
Date, interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person
in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular
Record Date.
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Section 3.8 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 principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
Section 3.9 Cancellation.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of in accordance
with the Trustee's usual document destruction procedures.
Section 3.10 Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of
a year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or
exchange of Securities herein expressly provided for), and the
Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the
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Trustee pursuant to subclause (B) of clause (1) of this Section,
the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive. Except as specifically
agreed in writing, the Trustee shall not be responsible for the
payment of interest upon money deposited with it under this
Indenture.
Section 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 4.1 (and held by it
or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.
ARTICLE 5
REMEDIES
Section 5.1 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 occasioned by the provisions of
Article 13 or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or
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certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) a failure by the Company or any Subsidiary to make
any payment at maturity in respect of any obligations (other
than non-recourse obligations) of, or guaranteed or assumed
by, the Company or any Subsidiary for borrowed money
("Indebtedness") in an amount in excess of $25,000,000 and
continuance of such failure for 180 days, or a default by the
Company or any Subsidiary with respect to any Indebtedness,
which default results in the acceleration or such
acceleration having been cured, waived, rescinded or annulled
within 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities a
written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause
such default to be cured or waived or such acceleration to be
rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company 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 in an
involuntary case or proceeding under any applicable Federal
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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 similar
official of the Company or of any substantial part of its
property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in
substantial furtherance of any such action.
Section 5.2 Acceleration of Maturity; Rescission
------------------------------------
and Annulment.
-------------
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare the
principal of all the Securities to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal shall
become immediately due and payable.
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
provided, the Holders of a majority in principal amount of the
Outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on)
any Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at
the rate borne by the Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
borne by the Securities, and
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(D) 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
(2) all Events of Default, other than the non-payment
of the principal of Securities which have become due solely
by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee.
----------------------
The Company covenants that if
(l) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if
any) and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at
the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon
the Securities, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid
in respect of the Securities and take such other actions,
including participating as a member, voting or otherwise, of
any official committee of creditors appointed in such matter
and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or 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 6.7.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims
--------------------------
Without Possession of Securities.
--------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Subject to Article 13, any money 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 on account of principal (or premium, if
any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute
any action, suit or proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
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(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in 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;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such action, suit or proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the
Outstanding Securities;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing
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 5.8 Unconditional Right of Holders to Receive
-----------------------------------------
Principal, Premium and Interest and to Convert.
----------------------------------------------
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article 13, the Holder of any
Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7) interest on such
Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date)
and to convert such Security in accordance with Article 12 and to
institute suit for the enforcement of any such payment and right
to convert, and such rights shall not be impaired without the
consent of such Holder.
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Section 5.9 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 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
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(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security, or
(2) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected;
provided however that no such waiver shall be effected until
all amounts then due to the Trustee under Section 6.7 have
been paid.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.14 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date) or for
the enforcement of the right to convert any Security in accordance
with Article 12.
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Section 5.15 Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(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;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture, but need not verify
the accuracy of the contents thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
EXCEPT that
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(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture;
and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the
case of a default in the payment of the principal of (or premium,
if any) or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest
of the Holders; and PROVIDED, FURTHER, that in the case of any
default of the character specified in Section 5.1(3), no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of
time or both would become, an Event of Default.
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Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(h) the permissive right of the Trustee to take or
refrain from taking any actions enumerated in this Indenture
shall not be construed as a duty and the Trustee shall not be
answerable in such actions other than for its own negligence
or bad faith; and
(i) the Trustee shall not be deemed to know of any fact
or event upon the occurrence of which it may be required to
take action hereunder unless one of its Responsible Officers
shall have actual knowledge thereof.
Section 6.4 Not Responsible for Recitals
----------------------------
or Issuance of Securities.
-------------------------
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, 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 Sections 6.8 and 6.13, may otherwise
deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company in writing.
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Section 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
this trust, including the costs, expenses and reasonable
attorneys' fees of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee has or shall acquire any conflicting
interest, within the meaning of the Trust Indenture Act, it shall,
within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign in
accordance with the provisions of the Trust Indenture Act.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section, the Trustee
shall, within 10 days after the expiration of such 90-day period,
transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such failure.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation
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publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10 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 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
for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.8(a) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security for at least six
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months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, 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 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 by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders as their names and addresses
appear in the Security Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate
Trust Office.
Section 6.11 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.
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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.
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,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claims
---------------------------------
Against Company.
---------------
If the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company or any other
obligor on the Securities, the Trustee shall be subject to and
comply with the provisions of the Trust Indenture Act regarding
the collection of claims against the Company or such other
obligor.
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be subject to acceptance by the Company
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and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State
thereof or The District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be subject to
acceptance by the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders
as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 6.7.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities described in the
within-mentioned Indenture.
State Street Bank and Trust Company
As Trustee
By_________________________________
As Authenticating Agent
By_________________________________
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names
--------------------------------
and Addresses of Holders.
------------------------
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders
as of such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after 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.
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Section 7.2 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 7.1 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 7.1 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under
the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided in 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 the disclosure of any such
information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
(a) On or about each July 15, the Trustee shall transmit to
the Holders such reports, if any, dated as of May 15, concerning
the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act in the manner
provided pursuant thereto.
(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 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.
Section 7.4 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission,
and transmit to the Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; PROVIDED that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the
Commission.
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ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 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:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person 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 shall be a
corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities
and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed and shall
have provided for conversion rights in accordance with
Article 12 hereof;
(2) 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 happened and be continuing; and
(3) the Company has delivered (except in the case of
the conveyance, transfer or lease by any Person of its
properties and assets substantially as an entirety to the
Company) 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 and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 8.2 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 8.1, 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 9
SUPPLEMENTAL INDENTURES
Section 9.1 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:
(1) 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
(2) 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
(3) to secure the Securities; or
(4) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article 12;
or
(5) to cure any ambiguity, 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,
PROVIDED such action pursuant to this clause (5) shall not
adversely affect the interests of the Holders.
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Section 9.2 Supplemental Indentures with
----------------------------
Consent of Holders.
------------------
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto 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,
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce
the amount payable upon an optional redemption or the
consideration payable to any Holder converting after a notice
of redemption has been given or modify the provisions of
Article 14 in a manner adverse to the Holders, or change the
place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or
in the case of redemption, on or after the Redemption Date),
or adversely affect the right to convert any Security as
provided in Article 12 (except as permitted by
Section 9.1(4)), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a
manner adverse to the Holders, or
(2) 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
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.8, 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.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture which, in the Trustee's sole discretion, affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 9.6 Reference in Securities to
--------------------------
Supplemental Indentures.
-----------------------
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
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ARTICLE 10
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in The Borough of Manhattan, The
City of New York or in the city in which the Corporate Trust
Office of the Trustee is located, an office or agency where
Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and 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 or in the city in which the
Corporate Trust Office of the Trustee is located for such
purposes. The Company will 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.
Section 10.3 Money for Security Payments to be Held in
-----------------------------------------
Trust.
-----
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the securities, segregate
and hold in trust for the benefit of the Persons entitled thereto
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a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or
interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security and
remaining unclaimed for two years after such principal (and
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premium, if any) or interest has become due and payable shall,
subject to applicable escheat and abandoned property law, 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 Borough of
Manhattan, The City of New York and in the city in which the
Corporate Trust Office of the Trustee is located, notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 10.4 Existence.
---------
Subject to Article 8, the Company will 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
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 10.5 Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any subsidiary and not disadvantageous
in any material respect to the Holders.
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Section 10.6 Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon
the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings.
Section 10.7 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 best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of Sections 10.1 to 10.8, inclusive, and
if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have
knowledge.
Section 10.8 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Sections 10.1 to 10.6,
inclusive, if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding
Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full
force and effect.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption.
-------------------
The Securities may be redeemed otherwise than at the option
of the Holder as provided in Article 14 at the election of the
Company, as a whole or from time to time in part, at any time on
or after December 1, 1998, at the Redemption Prices specified in
the form of Security hereinbefore set forth, together with accrued
interest to the Redemption Date.
Section 11.2 Applicability of Article.
------------------------
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and
this Article.
Section 11.3 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant
to Section 11.1 shall be evidenced by a Board Resolution. In case
of any redemption at the election of the Company of less than all
the Securities, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be
redeemed.
Section 11.4 Selection by Trustee of Securities
----------------------------------
to Be Redeemed.
--------------
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the
principal amount of Securities of a denomination larger than
$1,000.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion
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selected for redemption. Securities which have been converted
during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 11.5 Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 20 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his latest address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on
and after said date,
(5) the conversion price, the date on which the right
to convert the principal of the Securities to be redeemed
will terminate and the place or places where such Securities
may be surrendered for conversion, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
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Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the
Company.
Section 11.6 Deposit of Redemption Price.
---------------------------
Not less than one Business Day prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that
date other than any Securities called for redemption on that date
which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last
paragraph of Section 3.7) be paid to the Company upon Company
Request or, if then held by the Company, shall be discharged from
such trust.
Section 11.7 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium,
if any) shall, until paid, bear interest from the Redemption Date
at the rate borne by the Security.
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Section 11.8 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 10.2 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and 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
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE 12
CONVERSION OF SECURITIES
Section 12.1 Conversion Privilege and Conversion Price.
-----------------------------------------
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, at any time after 60
days from the latest date of original issuance of the Notes, any
Security or any portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be converted at the
principal amount thereof, or of such portion thereof, into fully
paid and nonassessable shares (calculated as to each conversion to
the nearest 1/100 of a share) of Common Stock of the Company, at
the conversion price, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall
expire at the close of business on December 1, 2000. In case a
Security or portion thereof is called for redemption or is
delivered for repurchase, such conversion right in respect of the
Security or portion so called shall expire at the close of
business on the fifth Business Day prior to the Redemption Date,
or the second Trading Day preceding the Repurchase Date (as
defined in Article 14), as the case may be, unless the Company
defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the "conversion price") shall be
initially $41 7/8 per share of Common Stock. The conversion price
shall be adjusted in certain instances as provided in
Section 12.4.
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Section 12.2 Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly
endorsed or assigned to the Company or in blank, at any office or
agency of the Company maintained for that purpose pursuant to
Section 10.2, accompanied by written notice to the Company at such
office or agency that the Holder elects to convert such Security
or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. In the case of
any Security that has been converted during the period from the
close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest
Payment Date, interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion and such interest shall be paid to
the Holder of such Security on such Regular Record Date.
Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest
Payment Date (the "Interest Period") shall be accompanied by
payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being
surrendered for conversion; EXCEPT THAT in the case of Securities
or portions thereof that have been called for redemption and,
pursuant to Section 12.1 hereof, as a result of such redemption,
the right to convert such Securities terminates during the
Interest Period, any such Securities surrendered for conversion
during such Interest Period need not be accompanied by payment of
an amount equal to such interest. Except as provided in the
second preceding sentence and subject to the fourth paragraph of
Section 3.7, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on the
Common Stock issued upon conversion. All payments required by
this paragraph to be made by the Holder upon the surrender of
Securities for conversion shall be made in New York Clearing House
Funds or other funds acceptable to the Company.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such
Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion
shall be treated for all purposes as the record holder or holders
of such Common Stock at such time. As promptly as practicable on
or after the conversion date, the Company shall issue and shall
deliver at such office or agency a certificate or certificates for
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the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a
share, as provided in Section 12.3.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of authorized
denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Security.
Section 12.3 Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock
which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the Company shall
pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price per share of Common
Stock (as determined by the Board of Directors or in any manner
prescribed by the Board of Directors) at the close of business on
the day of conversion.
Section 12.4 Adjustment of Conversion Price.
------------------------------
(1) In case the Company shall pay or make a dividend or
other distribution on any class of capital stock of the Company in
Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for the determination
of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price
by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum
of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction
to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common
Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the
treasury of the Company.
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(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on
the date fixed for the determination of stockholders entitled to
receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of
Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered
for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common
Stock. The Company will not issue any rights, options or warrants
in respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the conversion price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, cash or assets
(including Securities, but excluding any (i) rights, options or
warrants referred to in paragraph (2) of this Section, (ii) any
dividend or distribution paid exclusively in cash, (iii) any
dividend or distribution referred to in paragraph (1) of this
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Section and (iv) any merger or consolidation to which
Section 12.11 applies), 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 date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined
as provided in paragraph (8) of this Section) of the Common Stock
on the date fixed for such determination less the then fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets,
shares or evidences of indebtedness so distributed applicable to
one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination
of stockholders entitled to receive such distribution.
Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants (other than those referred to in
paragraph (2) of this Section) ("Rights") pro rata to holders of
Common Stock, the Company shall make proper provision so that each
Holder of a Security who converts such Security (or any portion
thereof) after the record date for such distribution and prior to
the expiration or redemption of the Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion (the "Conversion Shares"), a
number of Rights to be determined as follows: (i) if such
conversion occurs on or prior to the date for the distribution to
the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal to the
number of Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions of and
applicable to the Rights; and (ii) if such conversion occurs after
the Distribution Date, the same number of Rights to which a holder
of the number of shares of Common Stock into which the principal
amount of the Security so converted was convertible immediately
prior to the Distribution Date would have been entitled on the
Distribution Date in accordance with the terms and provisions of
and applicable to the Rights.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any
cash that is distributed upon a merger or consolidation to which
Section 12.11 applies or as part of a distribution referred to in
paragraph (4) of this Section) in an aggregate amount that,
combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively
in cash within the 12 months preceding the date of payment of such
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distribution and in respect of which no adjustment pursuant to
this paragraph (5) has been made and (II) the aggregate of any
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described
in a Board Resolution) of consideration payable in respect of any
tender offer by the Company or any of its subsidiaries for all or
any portion of the Common Stock concluded within the 12 months
preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to paragraph (6) of this Section
has been made, exceeds 12.5% of the product of the current market
price per share of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to
receive such distribution times the number of shares of Common
Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for
determination, 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 date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current market price per
share (determined as provided in paragraph (8) of this Section) of
the Common Stock on the date fixed for such determination less an
amount equal to the quotient of (x) the excess of such combined
amount over such 12.5% and (y) the number of shares of Common
Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market price
per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire
and such tender offer (as amended upon the expiration thereof)
shall require the payment to stockholders (based on the acceptance
(up to any maximum specified in the terms of the tender offer) of
Purchased Shares (as defined below)) of an aggregate consideration
having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described
in a Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), as of the expiration of such
tender offer, of consideration payable in respect of any other
tender offer by the Company or any Subsidiary for all or any
portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in respect of
which no adjustment pursuant to this paragraph (6) has been made
and (II) the aggregate amount of any distributions to all holders
of the Company's Common Stock made exclusively in cash within 12
months preceding the expiration of such tender offer and in
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respect of which no adjustment pursuant to paragraph (5) of this
Section has been made, exceeds 15% of the product of the current
market price per share of the Common Stock (determined as provided
in paragraph (8) of this Section) as of the last time (the
"Expiration Time") tenders could have been made pursuant to such
tender offer (as it may be amended) times the number of shares of
Common Stock outstanding (including any tendered shares) as of the
Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the
Expiration Time, the conversion price shall be adjusted so that
the same shall equal the price determined by multiplying the
conversion price immediately prior to close of business on the
date of the Expiration Time by a fraction (i) the numerator of
which shall be equal to (A) the product of (I) the current market
price per share of the Common Stock (determined as provided in
paragraph (8) of this Section) on the date of the Expiration Time
and (II) the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less
(B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares, and (ii) the denominator
of which shall be equal to the product of (A) the current market
price per share of the Common Stock (determined as provided in
paragraph (8) of this Section) as of the Expiration Time and
(B) the number of shares of Common Stock outstanding (including
any tendered shares) as of the Expiration Time less the number 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").
(7) The reclassification of Common Stock into securities
including other than Common Stock (other than any reclassification
upon a consolidation or merger to which Section 12.11 applies)
shall be deemed to involve (a) a distribution of such Securities
other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (4) of this
Section), and (b) a subdivision or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the
day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective," as the case may
be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this
Section).
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(8) For the purpose of any computation under paragraphs (2),
(4), (5) and (6) of this Section, 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 five consecutive
Business Days selected by the Company commencing not more than ten
Business Days before the day in question.
(9) The Company may make such reductions in the conversion
price, in addition to those required by paragraphs (l), (2), (3),
(4), (5) and (6) of this Section, as it considers to be advisable
in order that any event treated for Federal income tax purposes as
a dividend of stock or stock rights shall not be taxable to the
recipients.
(10) Notwithstanding any other provision of this
Section 12.4, the Company shall not be required to make any
adjustment of the conversion price unless such adjustment
(together with any prior adjustments that were not made as a
result of this clause (10)) would require an increase or decrease
of at least 1% of such conversion price.
Section 12.5 Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price in accordance with Section 12.4 and shall prepare a
certificate signed by the Treasurer of the Company setting
forth the adjusted conversion price and showing in reasonable
detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the Trustee
and at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price
shall forthwith be required, and as soon as practicable after
it is required, such notice shall be mailed by the Company to
all Holders at their last addresses as they shall appear in
the Security Register.
The Trustee may conclusively rely upon the last Treasurer's
certificate filed with it pursuant to paragraph (a) hereof as to
the conversion price then in effect.
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Section 12.6 Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount
that would require any adjustment pursuant to Section 12.4;
or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation
or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company or any Subsidiary shall commence a
tender offer for all or a portion of the Company's
outstanding shares of Common Stock (or shall amend any such
tender offer);
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 10.2, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at
least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights,
options or warrants are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
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Section 12.7 Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then
issuable upon the conversion of all Outstanding Securities.
Section 12.8 Taxes on Conversions.
--------------------
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has
been paid.
Section 12.9 Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be
fully paid and nonassessable and, except as provided in
Section 12.8, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
Section 12.10 Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to
the Trustee to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
Section 12.11 Provisions in Case of Consolidation,
-----------------------------------
Merger or Sale of Assets.
------------------------
In case of any consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another
Person into the Company (other than a merger which does not result
in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any sale or
transfer of all or substantially all of the assets of the Company,
the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall
have the right thereafter, during the period such Security shall
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be convertible as specified in Section 12.1, to convert such
Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of
the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such
sale or transfer was made, as the case may be ("Constituent
Person"), or an Affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or
amount of Securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind
or amount of Securities, cash and other property receivable upon
such consolidation, merger, sale or transfer is not the same for
each share of Common Stock of the Company held immediately prior
to such consolidation, merger, sale or transfer by others than a
Constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the
kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which,
for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive
consolidations, mergers, sales or transfers.
ARTICLE 13
SUBORDINATION OF SECURITIES
Section 13.1 Securities Subordinated to Senior Indebtedness.
----------------------------------------------
All Securities issued under this Indenture shall be issued
subject to the following provisions and each Holder of any
Security whether upon original issue or upon transfer or
assignment thereof accepts and agrees to be bound by such
provisions.
All Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness as defined in this Section. The term "Senior
Indebtedness" shall mean (a) all indebtedness of the Company,
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including the principal of and premium, if any, and interest on
such indebtedness whether outstanding on the date of this
Indenture or thereafter created, (i) for borrowed money, (ii) for
money borrowed by others and guaranteed, directly or indirectly,
by the Company, (iii) constituting purchase money indebtedness for
the payment of which the Company is directly or contingently
liable, (iv) constituting reimbursement obligations under bank
letters of credit, (v) under interest rate and currency swaps,
caps, floors, collars or similar agreements or arrangements
intended to protect the Company against fluctuations in interest
or currency rates, (vi) under any lease of any real or personal
property, whether outstanding on the date of execution of this
Indenture or thereafter created, incurred or assumed, which
obligations are capitalized on the books of the Company in
accordance with generally accepted accounting principles, unless,
in any such case, by the terms of the instrument creating or
evidencing such indebtedness it is provided that such indebtedness
is not superior in right of payment to the Securities or to other
indebtedness which is PARI PASSU with, or subordinated to, the
Securities, or (vi) all obligations of others of the kind
described in the preceding clauses (i), (ii), (iii), (iv), (v) and
(vi) assumed by or guaranteed by the Company, and (b) any
modifications, refundings, deferrals, renewals or extensions of
any such Senior Indebtedness, or securities, notes or other
evidences of indebtedness issued in exchange for such Senior
Indebtedness. As used in the preceding sentence the term
"purchase money indebtedness" shall mean indebtedness evidenced by
a note, debenture, bond or other similar instrument (whether or
not secured by any lien or other security interest) given in
connection with the acquisition of any business, properties or
assets of any kind acquired by the Company or any Subsidiary;
PROVIDED, HOWEVER, that, without limiting the generality of the
foregoing, such term shall not include any conditional sale
contract or any account payable or any other indebtedness created
or assumed by the Company in the ordinary course of business in
connection with the obtaining of inventories or services.
Section 13.2 No Payments in Certain Circumstances; Payment
---------------------------------------------
Over of Proceeds Upon Dissolution, Etc.
--------------------------------------
No payment on account of principal, premium, if any, or
interest on, or redemption or repurchase of, the Securities shall
be made if, at the time of such payment or immediately after
giving effect thereto: (i) there shall exist a default in the
payment of principal, premium, if any, sinking funds or interest
(including a default under any purchase or redemption obligations)
with respect to any Senior Indebtedness, or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal, premium, if any, sinking funds or interest) with
respect to any Senior Indebtedness, as defined therein or in the
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instrument under which the same is outstanding, permitting the
holders thereof to accelerate the maturity thereof and written
notice of such occurrence shall have been given to the Company and
to the Trustee under this Indenture by the holder or holders of
such Senior Indebtedness and such event of default shall not have
been cured or waived or shall not have ceased to exist.
Notwithstanding the foregoing, the Company may make and the
Trustee may receive and shall apply any payment in respect of the
Securities (for principal, premium, if any, or interest or
repurchase) if such payment was made prior to the occurrence of
any of the contingencies specified in clauses (i) and (ii) above.
In addition, nothing in this paragraph shall prevent the Company
from making or the Trustee from receiving or applying any payment
in connection with the redemption of Securities if the first
publication of notice of such redemption (whether by mail or
otherwise in accordance with this Indenture) has been made prior
to the occurrence of any of the contingencies specified in
clauses (i) and (ii) above.
Upon (i) any acceleration of the principal amount due on the
Securities or (ii) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal, premium, if any,
and interest due or to become due upon all Senior Indebtedness
(including interest thereon accruing after the commencement of any
such proceedings) shall first be paid in full, or payment thereof
provided for in money or money's worth in accordance with its
terms, before any payment is made on account of the principal of,
premium, if any, or interest on, or repurchase of, the
indebtedness evidenced by the Securities, and upon any such
dissolution or winding up or liquidation or reorganization any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee under this Indenture
would be entitled, except for the provisions hereof, shall be paid
by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the
Trustee under this Indenture if received by them or it, as the
case may be, directly to the holders of Senior Indebtedness (pro
rata to each such holder on the basis of the respective amounts of
Senior Indebtedness held by such holder) or their representatives,
to the extent necessary to pay all Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent
payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the
Holders of the Securities or to the Trustee under this Indenture.
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In the event that, contrary to the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the
Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full or provision made for such payment,
in accordance with its terms, such payment or distribution shall
be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing
any of such Senior Indebtedness have been issued, as their
respective interests may appear, for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary
to pay all such Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities (together with the holders of any
other indebtedness of the Company which is subordinated in right
of payment to the payment in full of all Senior Indebtedness,
which is not subordinated in right of payment to the Securities
and which by its terms grants such right of subrogation to the
holders thereof) shall be subrogated to the rights of the holders
of Senior Indebtedness to receive payments or distributions of
assets of the Company made on the Senior Indebtedness until the
principal of and premium, if any, and interest on, or repurchase
of, the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of
Senior Indebtedness by the Holders of the Securities or the
Trustee, shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders of Securities,
be deemed to be a payment by the Company to the Holders of or on
account of the Securities, it being understood that the provisions
of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of Senior Indebtedness, on the other
hand.
Section 13.3 Notice to Trustee of Specified Events;
-------------------------------------
Reliance on Certificate of Liquidating Agent.
--------------------------------------------
The Company shall give prompt written notice to the Trustee
of any insolvency or bankruptcy proceeding in respect of the
Company, of any proceedings for voluntary liquidation, dissolution
or other winding up of the Company (whether or not involving
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insolvency or bankruptcy), of the declaration of any Security as
due and payable before its expressed maturity, and of any event
which pursuant to Section 13.2 would prevent payment by the
Company on account of the principal, premium, if any, or interest
on, or repurchase of, the Securities. The Trustee, subject to the
provisions of Section 6.1, shall be entitled to assume that no
such event has occurred unless the Company, or a holder of Senior
Indebtedness, or any trustee therefor, has given such notice.
Upon any distribution of assets of the Company or payment by
or on behalf of the Company referred to in this Article, the
Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree of a court of competent jurisdiction
in which any proceedings of the nature referred to in Section 13.2
are pending, and the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled
to rely upon a certificate of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the
Holders of the Securities for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders
of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to
this Article. In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
Section 13.4 Trustee to Effectuate Subordination.
-----------------------------------
The Holder of each Security by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article and
appoints the Trustee as attorney-in-fact for any and all such
purposes.
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Section 13.5 Trustee Not Charged with Knowledge of
-------------------------------------
Prohibition.
-----------
Notwithstanding the provisions of this Article or any other
provision of this Indenture, but subject to the provisions of
Section 6.1 as between the Holders of Securities and the Trustee,
neither the Trustee nor any Paying Agent shall be charged with
knowledge of any facts which would prohibit the making of any
payment of moneys to or by the Trustee or any such Paying Agent,
unless and until the Trustee or such Paying Agent shall have
received written notice thereof at its Corporate Trust Office from
the Company or any holder of Senior Indebtedness or the trustee or
representative of the holder of such Senior Indebtedness on his
behalf; and, prior to the receipt of any such written notice, the
Trustee and any such Paying Agent shall be entitled to assume that
no such facts exist. If the Trustee or Paying Agent, as the case
may be, shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (including, without limitation,
the payment of the principal of or premium, if any, or the
interest on any Security) with respect to such moneys, the notice
provided for in this Section, then, anything herein contained to
the contrary notwithstanding, the Trustee and such Paying Agent as
the case may be, shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they
were received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days
prior to such date.
Section 13.6 Rights of Trustee as Holder of Senior
-------------------------------------
Indebtedness.
------------
The Trustee shall be entitled to all the rights set forth in
this Article with respect to any Senior Indebtedness which may be
at any time held by it to the same extent as any other holder of
Senior Indebtedness; and nothing in Section 6.13, or elsewhere in
this Indenture, shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.7.
Section 13.7 Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness.
------------
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to
Holders of Securities or the Company or any other Person moneys or
assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
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Section 13.8 Article Applicable to Paying Agent.
----------------------------------
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place
of the Trustee; PROVIDED, HOWEVER, that Section 13.5, 13.6 and
13.7 shall not apply to the Company if it acts as Paying Agent.
ARTICLE 14
REPURCHASE OF SECURITIES AT THE OPTION
OF THE HOLDER UPON A CHANGE IN CONTROL
Section 14.1 Right to Require Repurchase.
---------------------------
In the event that a Change in Control (as hereinafter
defined) shall occur, then each Holder shall have the right, at
the Holder's option, to require the Company to repurchase, and
upon the exercise of such right the Company shall repurchase, all
of such Holder's Securities, or any portion of the principal
amount thereof that is an integral multiple of $1,000, on the date
(the "Repurchase Date") that is 45 days after the date of the
Company Notice (as defined in Section 14.2) at a purchase price
equal to 100% of the principal amount of the Securities to be
repurchased (the "Repurchase Price"), together in each case with
accrued interest to the Repurchase Date. Such right to require
the repurchase of the Securities shall not continue after a
discharge of the Company from its obligations with respect to the
Securities in accordance with Article 4, unless a Change in
Control shall have occurred prior to such discharge. The
Repurchase Price shall be paid in cash.
Section 14.2 Notices; Method of Exercising
-----------------------------
Repurchase Right, Etc.
----------------------
(a) Unless the Company shall have theretofore called for
redemption all the outstanding Securities, on or before the 30th
day after the occurrence of a Change in Control, the Company or,
at the written request of the Company, the Trustee, shall mail to
all Holders a notice (the "Company Notice") as prepared by the
Company of the occurrence of the Change in Control and of the
repurchase right set forth herein arising as a result thereof.
The Company shall also deliver a copy of such notice of a
repurchase right to the Trustee and cause a copy of such notice of
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a repurchase right, or a summary of the information contained
therein, to be published in a newspaper of general circulation in
The Borough of Manhattan, The City of New York and the County of
Suffolk, The City of Boston, Massachusetts.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be
exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must
follow to exercise a repurchase right, and
(5) the conversion price then in effect, the date on
which the right to convert the principal amount of the
Securities to be repurchased will terminate and the place or
places where such Securities may be surrendered for
conversion or repurchase.
In addition, at least two Business Days preceding the
Repurchase Date, the Company shall cause to be published, in a
newspaper of general circulation in The Borough of Manhattan, The
City of New York, and the County of Suffolk, The City of Boston,
Massachusetts a notice specifying whether the Repurchase Price
will be payable in cash.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a
repurchase right or affect the validity of the proceedings for the
repurchase of Securities.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver
to the Trustee on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's exercise of such
right, which notice shall set forth the name of the Holder, the
principal amount of the Securities to be repurchased, a statement
that an election to exercise the repurchase right is being made
thereby, and (ii) the Securities with respect to which the
repurchase right is being exercised, duly endorsed for transfer to
the Company. Such written notice shall be executed by the Holder
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and shall be irrevocable, except that the right of the Holder to
convert the Securities with respect to which the repurchase right
is being exercised shall continue until the close of business on
the second Trading Day preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause
to be paid the Repurchase Price in cash as provided above, to the
Holder on the Repurchase Date as promptly after the Repurchase
Date as practicable, together with accrued and unpaid interest to
the Repurchase Date payable with respect to the Securities as to
which the repurchase right has been exercised; PROVIDED, HOWEVER,
that installments of interest that mature on or prior to the
Repurchase Date shall be payable in cash to the Holders of such
Securities, or one or more predecessor Securities, registered as
such at the close of business on the relevant Regular Record Date
according to the terms and provisions of Article 3.
(d) If any Security surrendered for repurchase shall not be
so paid on the Repurchase Date, the principal shall, until paid,
bear interest to the extent permitted by applicable law from the
Repurchase Date at the rate borne by the Security and each
Security shall remain convertible into Common Stock until the
principal of such Security shall have been paid or duly provided
for.
(e) Any Security which is to be repurchased only in part
shall be surrendered to the Trustee (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee
duly executed by, the holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and 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
unrepurchased portion of the principal of the Security so
surrendered.
Section 14.3 Certain Definitions.
-------------------
For purposes of this Article:
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3, as in effect on the date of the
original execution of this Indenture, promulgated by the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended;
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(b) the term "Common Stock" shall mean capital stock of the
Company that does not rank prior, as to the payment of dividends
or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of the Company,
to shares of capital stock of any other class of the Company;
(c) a "Change in Control" shall be deemed to have occurred
at such time after the original issuance of the Securities as
there shall occur:
(i) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or
other acquisition transaction or series of transactions,
of shares of capital stock of the Company entitling such
Person to exercise 50% or more of the total voting power
of all shares of capital stock of the Company entitled
to vote generally in the elections of directors (any
shares of voting stock of which such Person is the
beneficial owner that are not then outstanding being
deemed outstanding for purposes of calculating such
percentage); or
(ii) any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another
Person into the Company, or any sales or transfer of all
or substantially all of the assets of the Company to
another Person (other than a merger (x) which does not
result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock or
(y) which is effected solely to change the jurisdiction
of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding
shares of Common Stock into solely shares of common
stock); or
(iii) a change in the Board of Directors of the Company in
which the individuals who constituted the Board of
Directors of the Company at the beginning of the
24-month period immediately preceding such change
(together with any other director whose election by the
Board of Directors of the Company or whose nomination
for election by the stockholders of the Company was
approved by a vote of at least a majority of the
directors then in office either who were directors at
the beginning of such period or whose election or
nomination for election was previously so approved)
cease for any reason to constitute a majority of the
directors then in office;
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PROVIDED, HOWEVER, that a Change in Control shall not be deemed to
have occurred if either (x) the Closing Price on any five Trading
Days within the period of 10 consecutive Trading Days ending
immediately after the later of the date of the Change in Control
or the date of the public announcement of the Change in Control
(in the case of a Change in Control under clause (i) above) or the
period of 10 consecutive Trading Days ending immediately prior to
the date of the Change in Control (in the case of a Change in
Control under clause (ii) above) shall equal or exceed 105% of the
conversion price in effect on each such Trading Day or (y) (i) all
the consideration (excluding cash payments for fractional shares)
to be paid for the Common Stock in the transaction or transactions
constituting the Change in Control consists of shares of common
stock traded on a national securities exchange or quoted on the
Nasdaq National Market and as a result of such transaction or
transactions the Securities become convertible solely into such
common stock, and (ii) after giving effect to such transaction or
transactions and for a period of 12 months thereafter, the Notes
have a rating of (A) "Ba1" or better (or equivalent rating under
successor ratings classification system) by Xxxxx'x Investors
Services, Inc. and (B) "BBB" or better (or equivalent rating under
a successor ratings classification system) by Standard & Poor's
Corporation; and
(d) the term "Person" shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, as in effect on
the date of the original execution of this Indenture.
______________________________
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90
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
Attestation as to ANALOG DEVICES, INC.
the Corporate Seal:
/S/ Xxxxxxx X. Xxxx By /S/ Xxxxxx X. Xxxxxxx
-------------------------- -------------------------------
Assistant Clerk Name: Xxxxxx X. Xxxxxxx
Title: President and
Chief Operating Officer
STATE STREET BANK AND TRUST
COMPANY
Attest: As Trustee
/S/ Xxxx X. Xxxxx By /S/ Xxxxx X. Seemore
-------------------------- -------------------------------
Name: Xxxxx X. Seemore
Title: Assistant Vice President
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91
COMMONWEALTH OF MASSACHUSETTS ) ss.:
COUNTY OF SUFFOLK )
On the 15TH day of December, 1995, before me personally came
XXXXXX X. XXXXXXX to me known, who, being by me duly
sworn, did depose and say that he is PRESIDENT AND CHIEF OPERATING
OFFICER of Analog Devices, Inc., one of the corporations described
in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/S/ Xxxxxxx Xxxxxx
------------------------------------
My Commission Expires: 8/18/2000
COMMONWEALTH OF MASSACHUSETTS ) ss.:
COUNTY OF SUFFOLK )
On the 15TH day of December, 1995, before me personally came
XXXXX X. SEEMORE to me known, who, being by me duly
sworn, did depose and say that he/she is AN ASSISTANT VICE
PRESIDENT of State Street Bank and Trust Company, a Massachusetts
banking corporation described in and which executed the foregoing
instrument; that he/she knows the seal of said association; that
the seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of said
association, and that he/she signed his/her name thereto by like
authority.
/S/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
Notary Public
My Commission Expires July 12, 2002
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