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CORNING INCORPORATED
AS ISSUER
TO
JPMORGAN CHASE BANK
AS TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
Dated as of November [x], 2001
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3.50% Convertible Debentures
due November 1, 2008
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TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS
SECTION 1.01 DEFINITIONS......................................................2
ARTICLE TWO GENERAL PROVISIONS
SECTION 2.01 DESIGNATION OF 2008 DEBENTURES; ESTABLISHMENT OF FORM............5
SECTION 2.02 AMOUNT...........................................................6
SECTION 2.03 INTEREST.........................................................6
SECTION 2.04 DISCHARGE OF LIABILITY ON 2008 DEBENTURES........................6
SECTION 2.05 MATURITY.........................................................6
SECTION 2.06 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT..............................6
SECTION 2.07 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..............7
SECTION 2.08 MUTILATED, DESTROYED, LOST AND STOLEN 2008 DEBENTURES............7
SECTION 2.09 THE TRUSTEE......................................................7
SECTION 2.10 COVENANTS........................................................7
ARTICLE THREE REDEMPTION OF THE 2008 DEBENTURES
SECTION 3.01 REDEMPTION OF THE 2008 DEBENTURES................................7
SECTION 3.02 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION....................8
ARTICLE FOUR CONVERSION OF THE 2008 DEBENTURES
SECTION 4.01 APPLICABILITY OF ARTICLE.........................................8
SECTION 4.02 CONVERSION RIGHT AND CONVERSION PRICE............................9
SECTION 4.03 EXERCISE OF CONVERSION RIGHT.....................................9
SECTION 4.04 FRACTIONS OF SHARES.............................................10
SECTION 4.05 ADJUSTMENT OF CONVERSION PRICE..................................11
SECTION 4.06 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.......................16
SECTION 4.07 NOTICE OF CERTAIN CORPORATE ACTION..............................16
SECTION 4.08 COMPANY TO RESERVE COMMON STOCK.................................17
SECTION 4.09 TAXES ON CONVERSIONS............................................17
SECTION 4.10 COVENANT AS TO COMMON STOCK.....................................18
SECTION 4.11 CANCELLATION OF CONVERTED 2008 DEBENTURES.......................18
SECTION 4.12 PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS...18
SECTION 4.13 RIGHTS ISSUED IN RESPECT OF COMMON STOCK........................19
SECTION 4.14 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.............19
ARTICLE FIVE REPURCHASE OF 2008 DEBENTURES AT OPTION OF HOLDER UPON
A CHANGE IN CONTROL
SECTION 5.01 GENERAL.........................................................20
SECTION 5.02 THE COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF
REPURCHASE PRICE................................................24
SECTION 5.03 REPURCHASE WITH CASH............................................25
SECTION 5.04 PAYMENT BY ISSUANCE OF COMMON STOCK.............................25
SECTION 5.05 NOTICE OF ELECTION..............................................26
SECTION 5.06 COVENANTS OF THE COMPANY........................................27
SECTION 5.07 PROCEDURE UPON REPURCHASE.......................................28
SECTION 5.08 TAXES...........................................................28
SECTION 5.09 EFFECT OF REPURCHASE NOTICE.....................................28
SECTION 5.10 DEPOSIT OF REPURCHASE PRICE.....................................29
SECTION 5.11 2008 DEBENTURES REPURCHASED IN PART.............................29
SECTION 5.12 COMPLY WITH SECURITIES LAWS UPON REPURCHASE OF 2008 DEBENTURES..30
SECTION 5.13 REPAYMENT TO THE COMPANY........................................30
SECTION 5.14 CONVERSION ARRANGEMENT ON REPURCHASE............................30
ARTICLE SIX MISCELLANEOUS PROVISIONS
SECTION 6.01 INTEGRAL PART...................................................31
SECTION 6.02 GENERAL DEFINITIONS.............................................31
SECTION 6.03 ADOPTION, RATIFICATION AND CONFIRMATION.........................32
SECTION 6.04 EFFECT OF FIRST SUPPLEMENTAL INDENTURE..........................32
SECTION 6.05 TRUSTEE NOT RESPONSIBLE FOR RECITALS............................32
SECTION 6.06 EFFECTIVENESS...................................................32
SECTION 6.07 COUNTERPARTS....................................................32
SECTION 6.08 GOVERNING LAW...................................................32
ANNEX A - FORM OF 2008 DEBENTURE
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of November [ ],
2001, between Corning Incorporated, a New York corporation (the "Company"), and
JPMorgan Chase Bank, formerly The Chase Manhattan Bank, as trustee (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has executed and delivered to the Trustee
an Indenture, dated as of November 8, 2000 (without regard to the provisions of
a First Supplemental Indenture (the "First Supplemental Indenture"), dated even
date therewith, between the Company and the Trustee, the "Indenture").
WHEREAS, the Indenture provides for the Company's issuance
from time to time of unsecured debentures, notes or other evidence of
indebtedness;
WHEREAS, Section 901 of the Indenture provides that the
Company, when authorized by a Board Resolution, and the Trustee may without the
consent of any Holders of Securities enter into one or more indentures
supplemental to the Indenture for, among other things, establishing the form and
terms of Securities of any series;
WHEREAS, the Company desires to issue a series of 3.50%
Convertible Debentures due November 1, 2008 under the Indenture, and has duly
authorized the creation and issuance of such debentures and the execution and
delivery of this Second Supplemental Indenture to supplement the Indenture as
hereinafter described;
WHEREAS, the Company deems it advisable to enter into this
Second Supplemental Indenture with the Trustee for the purpose of establishing
the form and terms of such senior convertible debt securities and providing for
the rights, obligations and duties of the Trustee with respect to such debt
securities;
WHEREAS, concurrent with the execution hereof, the Company has
caused its counsel to deliver to the Trustee an Opinion of Counsel or a reliance
letter upon an Opinion of Counsel to the effect that the execution of this
Second Supplemental Indenture is authorized or permitted by the Indenture;
WHEREAS, all conditions and requirements of the Indenture
necessary to make this Second Supplemental Indenture a valid, binding and legal
instrument of the Company in accordance with its terms have been performed and
fulfilled by the Company.
NOW THEREFORE:
In consideration of the premises provided for herein, the
Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of all Holders of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01 DEFINITIONS.
Unless the context otherwise requires:
(a) except as provided in subsection (e) below, each term
defined in the Indenture has the same meaning when used in this Second
Supplemental Indenture;
(b) each term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation;
(e) not withstanding the provisions in the Indenture, for
purposes of this Second Supplemental Indenture and the 2008 Debentures, the
following terms have the meanings given to them in this Section 1.01(e):
"2008 Debenture" has the meaning specified in Section 2.01 of
this Second Supplemental Indenture.
"Aggregate Cash Distribution Amount" has the meaning specified
in Section 4.05(5) in this Second Supplemental Indenture.
"Capital Stock" or "capital stock" of any Person means any and
all shares, interests, partnership interests, participations, rights or
other equivalents (however designated) of such Person's equity interest
(however designated) issued by that Person.
"Change in Control" has the meaning specified in Section
5.01(1) of this Second Supplemental Indenture.
"Change in Control Notice" has the meaning specified in
Section 5.01(2) of this Second Supplemental Indenture.
"Common Stock" means 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 4.12 hereof,
shares issuable on conversion of 2008 Debentures shall include only
shares of the class designated as Common Stock of the Company at the
date hereof or shares of any class or classes resulting from any
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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.
"Company Notice" has the meaning specified in Section 5.05 of
this Second Supplemental Indenture.
"Company Notice Date" has the meaning specified in Section
5.03 of this Second Supplemental Indenture.
"Constituent Person" has the meaning specified in Section 4.12
of this Second Supplemental Indenture.
"Conversion Agent" means the Person authorized by the Company
to effect the conversion of the 2008 Debentures and shall initially be
the agent specified in Section 2.01 of this Second Supplemental
Indenture.
"Conversion Price" has the meaning specified in Section 4.02
of this Second Supplemental Indenture.
"Conversion Rate" has the meaning specified in Section 4.02 of
this Second Supplemental Indenture.
"Conversion Right" has the meaning specified in Section 4.02
of this Second Supplemental Indenture.
"Coupon Rate" has the meaning specified in Section 2.03 of
this Second Supplemental Indenture.
"Excess Amount" has the meaning specified in Section 4.05(5)
of this Second Supplemental Indenture.
"Expiration Time" has the meaning specified in Section 4.05(6)
of this Second Supplemental Indenture.
"Global Securities" has the meaning specified in Section 2.01
of this Second Supplemental Indenture.
"Issue Date" of any 2008 Debenture means the date on which the
first of this series of 2008 Debentures was originally issued or deemed
issued as set forth on the face of the 2008 Debenture.
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"Market Price" has the meaning specified in Section 5.04 of
this Second Supplemental Indenture.
"Non-Electing Share" has the meaning specified in Section 4.12
of this Second Supplemental Indenture.
"Predecessor 0000 Xxxxxxxxx" means every previous 2008
Debenture evidencing all or a portion or the same debt as that
evidenced by a particular 0000 Xxxxxxxxx; and, for the purposes of this
definition, any 2008 Debenture authenticated and delivered under
Section 306 of the Indenture in exchange for or in lieu of a mutilated,
destroyed, lost or stolen 2008 Debenture shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen 2008
Debenture.
"Pricing Agreement" means the Pricing Agreement, dated
November 8, 2001 by and among the Company and the Underwriters.
"Purchased Shares" has the meaning specified in 4.05(6) of
this Second Supplemental Indenture.
"Record Date Period" means the period from the close of
business on any Regular Record Date immediately preceding any Interest
Payment Date to the opening of business on such Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 5.01(1)
of this Second Supplemental Indenture.
"Repurchase Notice" has the meaning specified in Section
5.01(3) of this Second Supplemental Indenture.
"Repurchase Price" has the meaning specified in Section
5.01(1) of this Second Supplemental Indenture.
"Sale Price" has the meaning specified in Section 4.05(8) of
this Second Supplemental Indenture.
"Trading Day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock
is not listed on the New York Stock Exchange, on the principal other
national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the Nasdaq National Market System or,
if the Common Stock is not quoted on the Nasdaq National Market System,
on the principal other market on which the Common Stock is then traded.
"Trigger Event" has the meaning specified in Section 4.13 of
this Second Supplemental Indenture.
"Underwriters" means Xxxxxxx, Xxxxx & Co., X.X. Xxxxxx
Securities Inc., Bank of America Securities LLC, Xxxxxxx Xxxxx Xxxxxx
Inc. and Credit Suisse First Boston Corporation.
"Unissued Shares" has the meaning specified in Section
5.01(1) of this Second Supplemental Indenture.
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"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof under ordinary circumstances have
the power to vote in the election of the board of directors, managers
or trustees (or other Persons performing similar functions) of any
Person, irrespective of whether or not, at the time, Capital Stock of
any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency.
ARTICLE TWO
GENERAL PROVISIONS
SECTION 2.01 DESIGNATION OF 2008 DEBENTURES; ESTABLISHMENT OF FORM.
There shall be a series of Securities designated "3.50%
Convertible Debentures due November 1, 2008" of the Company (the "2008
Debentures"), and the form thereof shall be substantially as set forth in Annex
A hereto, which is incorporated into and shall be deemed a part of this Second
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and which 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 of the Company executing
such 2008 Debentures, as evidenced by their execution of the 2008 Debentures
(but which shall not, in any case, affect the rights or duties of the Trustee as
provided in the Indenture and this Second Supplemental Indenture).
The 2008 Debentures will initially be issued in permanent
global form, substantially in the form set forth in Annex A hereto (the
"Global Securities"), registered in the name of The Depository Trust Company,
or "DTC", as Depositary, or its nominee, and deposited with JPMorgan Chase
Bank, as custodian for DTC, for credit by DTC to the respective accounts of
beneficial owners of the 2008 Debentures represented thereby (or such other
accounts as they may direct). Each Global Security shall represent such of
the Outstanding 2008 Debentures as shall be specified therein and shall
provide that it shall represent the aggregate amount of Outstanding 2008
Debentures from time to time endorsed thereon and that the aggregate amount
of Outstanding 2008 Debentures represented thereby may from time to time be
reduced to reflect exchanges, conversions, repurchases and redemptions. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding 2008 Debentures represented thereby
shall be made by the Trustee in accordance with written instructions, or such
other written form of instructions as is customary for the Depositary, from
the Depositary or its nominee on behalf of any Person having the beneficial
interest in the Global Security.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as its
Paying Agent and Conversion Agent, with respect to the 2008 Debentures.
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SECTION 2.02 AMOUNT.
(a) The Trustee shall authenticate and deliver the 2008
Debentures for original issue in an aggregate principal amount of $600,000,000
(plus the amount in which the Underwriters exercise their option to purchase
additional 2008 Debentures set forth in the Pricing Agreement, such amount not
to exceed $90,000,000) upon Company Order for the authentication and delivery of
2008 Debentures. The aggregate principal amount of 2008 Debentures that may be
authenticated and delivered under the Indenture may not exceed the amount set
forth in the foregoing sentence, except for any 2008 Debentures authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other 2008 Debentures pursuant to Xxxxxxx 000, 000, 000, 000 xx 0000 of the
Indenture or Section 4.03 or 5.11 of this Second Supplemental Indenture.
(b) The Company may not issue new 2008 Debentures to replace
2008 Debentures that it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article Four of this Second
Supplemental Indenture.
SECTION 2.03 INTEREST.
Each 2008 Debenture will bear interest at the rate of 3.50%
per annum (the "Coupon Rate") from and including the original Issue Date until
the principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Coupon Rate, compounded
semi-annually, payable semi-annually in arrears on May 1 and November 1 in each
year (each, an "Interest Payment Date"), commencing on May 1, 2002, to the
Person in whose name such 2008 Debenture or any Predecessor 2008 Debenture is
registered, at the close of business on the Regular Record Date for such
interest installment, which shall be the close of business on the April 15 or
October 15 immediately preceding that Interest Payment Date. Cash interest shall
be computed in accordance with Section 310 of the Indenture. In the event that
any date on which interest is payable on the 2008 Debentures is not a Business
Day, then payment of interest payable on such date will be made on the
immediately succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay). Interest on any 2008 Debenture that
is converted pursuant to Article Four during a Record Date Period shall be
payable in accordance with Section 4.03 hereof.
SECTION 2.04 DISCHARGE OF LIABILITY ON 2008 DEBENTURES.
Article Thirteen of the Indenture shall be applicable to the
2008 Debentures.
SECTION 2.05 MATURITY.
The Stated Maturity of the principal of the 2008 Debentures
shall be November 1, 2008.
SECTION 2.06 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST AND TO CONVERT.
Notwithstanding any other provision in the Indenture or this
Second Supplemental Indenture, the Holder of any 2008 Debenture shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 307 of the Indenture) interest on
such 2008 Debenture on the Stated Maturity expressed in such 2008 Debenture (or,
in the case of
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redemption or repurchase, on the Redemption Date or Repurchase Date), and to
convert such 2008 Debenture in accordance with its terms, and to institute suit
for the enforcement of any such payment and, if applicable, any such right to
convert, and such rights shall not be impaired without the consent of such
Holder.
SECTION 2.07 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall not be required (i) to issue, register the
transfer of or exchange any 2008 Debenture during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of 2008 Debentures selected for redemption and ending at the close of
business on the day of such mailing, (ii) to register the transfer of or
exchange any 2008 Debenture so selected for redemption in whole or in part,
except the unredeemed portion of any 2008 Debenture being redeemed in part, or
(iii) to exchange or register a transfer of any 2008 Debenture or portions
thereof in respect of which a Repurchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a 2008
Debenture in part, the portion not to be purchased).
SECTION 2.08 MUTILATED, DESTROYED, LOST AND STOLEN 2008 DEBENTURES.
In case any mutilated, destroyed, lost or stolen 2008
Debenture has or is about to become due and payable, or is about to be redeemed
or repurchased by the Company upon a Change in Control pursuant to Article Five
of this Second Supplemental Indenture, the Company in its discretion may,
instead of issuing a new 2008 Debenture, pay such 2008 Debenture.
SECTION 2.09 THE TRUSTEE.
The provisions of Section 607 of the Indenture shall survive
the resignation or removal of the Trustee and the termination of the Indenture
and this Second Supplemental Indenture.
SECTION 2.10 COVENANTS.
Sections 1008 and 1009 of the Indenture shall not apply to the
2008 Debentures.
ARTICLE THREE
REDEMPTION OF THE 2008 DEBENTURES
SECTION 3.01 REDEMPTION OF THE 2008 DEBENTURES.
(a) The Company, at its option, may redeem the 2008
Debentures in accordance with the provisions of and at the Redemption Prices
set forth under the captions "Optional Redemption" in the 2008 Debentures and
in accordance with the provisions of Article Eleven of the Indenture and this
Second Supplemental Indenture. All notices of redemption of the 2008
Debentures shall state that there exists a Conversion Right.
(b) There shall be no sinking fund for the retirement of the
2008 Debentures.
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SECTION 3.02 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
The Company may arrange for the purchase and conversion of any
2008 Debentures called for redemption by an agreement with one or more
investment bankers or other purchasers to purchase such 2008 Debentures by
paying to a Paying Agent (other than the Company or any of its Affiliates) for
the benefit of the Holders, on or before 11:00 A.M. New York City time on the
Redemption Date, an amount that, together with any amounts deposited with such
Paying Agent by the Company for the redemption of such 2008 Debentures, is not
less than the Redemption Price of such 2008 Debentures together with interest
accrued to the Redemption Date. Notwithstanding anything to the contrary
contained in this Article Three, the obligation of the Company to pay the
Redemption Price of such 2008 Debentures, including interest, if any, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers; PROVIDED, HOWEVER, that nothing in this Section 3.02 shall
relieve the Company of its obligation to pay the Redemption Price on 2008
Debentures called for redemption. If such an agreement is entered into, any 2008
Debentures called for redemption and not surrendered for conversion by the
Holders thereof prior to the relevant Redemption Date may, at the option of the
Company upon written notice to the Trustee, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article Four hereof)
surrendered by such purchasers for conversion, all as of 11:00 A.M. New York
City time on the Redemption Date, subject to payment of the above amount as
aforesaid. The Paying Agent shall hold and pay to the Holders whose 2008
Debentures are selected for redemption any such amount paid to it for purchase
in the same manner as it would money deposited with it by the Company for the
redemption of 2008 Debentures. Without the Paying Agent's prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any 2008 Debentures shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Paying Agent as set forth
in the Indenture and this Second Supplemental Indenture, and the Company agrees
to indemnify the Paying Agent from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any 2008 Debentures between the Company and
such purchasers, including without limitation the costs and expenses incurred by
the Paying Agent in the defense of any claim or liability reasonably incurred
without negligence or bad faith on its part arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under the Indenture and this Second Supplemental Indenture, in
accordance with the indemnity provisions applicable to the Trustee set forth
in the Indenture.
ARTICLE FOUR
CONVERSION OF THE 2008 DEBENTURES
SECTION 4.01 APPLICABILITY OF ARTICLE.
Pursuant to Section 301 of the Indenture, provision is hereby
made for the conversion of the 2008 Debentures pursuant to this Article Four.
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SECTION 4.02 CONVERSION RIGHT AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this
Article Four, at the option of the Holder thereof, any 2008 Debenture may be
converted 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 (the "Conversion Right"). The ratio derived by dividing $1,000 by
the then-applicable Conversion Price is referred to herein as the "Conversion
Rate." Such Conversion Right shall commence on the Issue Date of the 2008
Debentures and expire at the close of business on the Business Day immediately
preceding the Stated Maturity of the principal of the 2008 Debentures. In case a
2008 Debenture or portion thereof is called for redemption or the Holder thereof
exercises its right to require the Company to repurchase the 2008 Debenture upon
a Change in Control, such Conversion Right in respect of the 2008 Debenture or
portion thereof so called or repurchasable shall expire at the close of business
on the Business Day immediately preceding the Redemption Date or Repurchase
Date, unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be, in which case the Conversion Right shall
terminate at the close of business on the date such default is cured and such
2008 Debenture is redeemed or repurchased. Any 2008 Debenture in respect of
which a Repurchase Notice has been given may not be converted pursuant to this
Article Four on or after the date of the delivery of such Repurchase Notice
unless such Repurchase Notice has first been validly withdrawn in accordance
with Section 5.09 hereof.
A Holder of a 2008 Debenture is not entitled to any rights of
a holder of Common Stock until such Holder has converted its 2008 Debenture into
Common Stock and only to the extent such 2008 Debenture is deemed to have been
converted into Common Stock pursuant to this Article Four.
The price at which shares of Common Stock shall be delivered
upon conversion is herein referred to as the "Conversion Price". The initial
Conversion Price shall be $9.6750 per share of Common Stock. The Conversion
Price shall be adjusted in certain instances as provided in Section 4.05 hereof.
SECTION 4.03 EXERCISE OF CONVERSION RIGHT.
In order to exercise the Conversion Right, the Holder of any
2008 Debenture to be converted shall surrender such 2008 Debenture, 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 1002 of the Indenture,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such 2008 Debenture or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Each 2008 Debenture surrendered for conversion (in whole or in part)
within the Record Date Period shall (except in the case of any 2008 Debenture or
portion thereof which has been called for redemption on a Redemption Date, or is
repurchasable on a Repurchase Date, occurring, in either case, within such
Record Date Period or on the Interest Payment Date immediately following such
Record Date Period and, as a result, the right to convert such 2008 Debenture
would otherwise terminate within such Record Date Period if not exercised) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on the
Interest Payment Date immediately following the Record Date Period on the
principal amount of such 2008 Debenture (or part thereof, as the case may be)
being surrendered for conversion. The interest so payable on such Interest
Payment Date with respect to any 2008 Debenture (or portion thereof, if
applicable) that is surrendered for conversion during the Record Date Period
shall be paid to the Holder of such 2008 Debenture as of the Regular Record Date
immediately preceding the Record Date Period in an amount equal to the interest
that would have been payable on such 2008 Debenture if such
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2008 Debenture had been converted as of the close of business on such Interest
Payment Date. Interest payable on any Interest Payment Date in respect of any
2008 Debenture surrendered for conversion on or after such Interest Payment Date
shall be paid to the Holder of such 2008 Debenture as of the Regular Record Date
immediately preceding such Interest Payment Date, notwithstanding the exercise
of the right of conversion. Except as provided in this paragraph and subject to
the last sentence of Section 2.03 hereof, no cash payment or adjustment shall be
made upon any conversion on account of any interest accrued from the Interest
Payment Date immediately preceding the conversion date, in respect of any 2008
Debenture (or part thereof, as the case may be) surrendered for conversion, or
on account of any dividends on the Common Stock issued upon conversion. The
Company's delivery to the Holder of the number of shares of Common Stock (and
cash in lieu of fractional shares of Common Stock, as provided in this Second
Supplemental Indenture) into which a 2008 Debenture is convertible will be
deemed to satisfy the Company's obligation to pay the principal amount of the
2008 Debenture.
If surrendered, the 2008 Debentures shall be deemed to have
been converted immediately prior to the close of business on the day of
surrender of such 2008 Debentures for conversion in accordance with the
foregoing provisions, and at such time the rights of the Holders of such 2008
Debentures as Holders shall cease, and the Person or Persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all purposes as
the record holder or holders of such Common Stock at such time. As promptly as
practicable on or after the conversion date, the Company shall issue and deliver
at its office or agency maintained pursuant to Section 1002 of the Indenture a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fractional share
of Common Stock, as provided in Section 4.04 hereof.
In the case of any 2008 Debenture which is converted in part
only, upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new 2008 Debenture or 2008 Debentures of authorized denominations in aggregate
principal amount equal to the unconverted portion of the principal amount of
such 2008 Debenture.
SECTION 4.04 FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon
conversion of 2008 Debentures. If more than one 2008 Debenture 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 2008 Debentures (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any 2008 Debenture or
2008 Debentures (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 Sale Price of Common Stock (as defined in Section 4.05(8) hereof) at the
close of business on the Trading Day immediately preceding the day of
conversion.
SECTION 4.05 ADJUSTMENT OF CONVERSION PRICE.
(1) In case at any time after the Issue Date of the 2008
Debentures, the Company shall pay or make a dividend or other distribution on
any class of Capital Stock of the Company payable in shares of Common Stock, the
Conversion Price in effect at the opening of business on the day following
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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 (a) 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 (b) 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. If, after any such date fixed for determination, any dividend
or distribution is not in fact paid, the Conversion Price shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, to the Conversion Price
that would have been in effect if such determination date had not been fixed.
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 fractional 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.
(2) In case at any time after the Issue Date of the 2008
Debentures, the Company shall issue rights, options or warrants to all holders
of its Common Stock (not being available on an equivalent basis to Holders of
the 2008 Debentures upon conversion) 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, options or warrants (other than pursuant to a dividend
reinvestment plan), 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 (a) 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 (b) 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. If, after any such dated fixed for determination, any such
rights, options or warrants are not in fact issued, or are not exercised prior
to the expiration thereof, the Conversion Price shall be immediately readjusted,
effective as of the date such rights, options or warrants expire, or the date
the Board of Directors determines not to issue such rights, options or warrants,
to the Conversion Price that would have been in effect if the unexercised
rights, options or warrants had never been granted or such determination date
had not been fixed, as the case may be. 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 fractional 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 at any time after the Issue Date of the 2008
Debentures, 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
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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 at any time after the Issue Date of the 2008
Debentures, the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including
cash or assets or securities, but excluding (i) any dividend or distribution
referred to in paragraph (1) of this Section 4.05, (ii) any rights, options or
warrants referred to in paragraph (2) of this Section 4.05, (iii) any
subdivision or combination of the Common Stock referred to in paragraph (3) of
this Section 4.05, (iv) any dividend or distribution paid exclusively in cash,
and (v) any consideration distributed in any merger or consolidation to which
Section 4.12 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 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. If after
any such date fixed for determination, any such distribution is not in fact
made, the Conversion Price shall be immediately readjusted, effective as of the
date the Board of Directors determines not to make such distribution, to the
Conversion Price that would have been in effect if such determination date had
not been fixed.
(5) In case at any time after the Issue Date of the 2008
Debentures, 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 4.12 hereof applies or as part of a
distribution referred to in paragraph (4) of this Section 4.05) in an aggregate
amount that, combined together with:
(A) the aggregate amount of any other such all-cash
distributions made to all holders of its Common Stock within the 12
months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) has been
made, and
(B) 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 any other
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 4.05 has been made (the amount of such
cash distribution together with the amounts described in clauses (A)
and (B) above being referred to herein as the "Aggregate Cash
Distribution Amount") exceeds 10% of the product of (I) 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 (II) the number of shares of Common Stock
outstanding on such
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date (the amount by which the Aggregate Cash Distribution Amount
exceeds 10% of the product of the amounts described in clauses (I) and
(II) above being referred to herein as the "Excess Amount"), then, and
in each such case, immediately after the close of business on such date
for determination, the Conversion Price shall be decreased in
accordance with the following formula:
M - (EA/O)
AC = CP x ----------
M
Where:
AC = the adjusted Conversion Price.
CP = the Conversion Price in effect immediately prior to the
close of business on the date fixed for determination of
the stockholders entitled to receive the distribution.
M = the current market price per share (determined as
provided in paragraph (8) of this Section 4.05) of the
Common Stock on the date fixed for determination of the
stockholders entitled to receive the distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on the
date fixed for determination of the stockholders entitled
to receive the distribution.
If, after any such date fixed for determination, any dividend
or distribution is not in fact paid, the Conversion Price shall be immediately
readjusted, effective as of the date the Board of Directors determines not to
pay such dividend or distribution, to the Conversion Price that would have been
in effect if such determination date had not been fixed.
(6) In case at any time after the Issue Date of the 2008
Debentures, 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:
(A) 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
(B) the aggregate amount of any all-cash distributions
referred to in paragraph (5) of this Section 4.05 made to all holders
of the Company's Common Stock within 12 months
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preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to paragraph (5) of this Section 4.05 has been
made, exceeds 10% of the product of (I) 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 (II) the number of shares of Common Stock outstanding (including
any tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day after the
date of the Expiration Time, the Conversion Price shall be adjusted in
accordance with the following formula:
(M x O) - C
AC = CP x ------------
M x (O - TS)
Where:
AC = the adjusted Conversion Price.
CP = the Conversion Price immediately prior to close of business
on the date of the Expiration Time.
M = the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this Section 4.05)
on the date of the Expiration Time.
O = the number of shares of Common Stock outstanding (including
any tendered shares) on the Expiration Time.
C = the amount of 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 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 (as defined below).
TS = 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").
In the event that the Company is obligated to purchase shares
pursuant to any tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchase or otherwise terminates such
tender offer for any reason, the Conversion Price shall be immediately
readjusted to the Conversion Price which would have been in effect if such
tender offer had not been made.
(7) The reclassification of Common Stock into securities other
than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 4.12 hereof applies) shall be deemed to involve (a) a
distribution of such securities to all holders of Common Stock (and the
effective
-14-
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 4.05), 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 4.05).
(8) For the purpose of any computation under paragraphs
(2), (4), (5) and (6) of this Section 4.05, the current market price per
share of Common Stock on any date shall be deemed to be the average of the
daily Sale Price for the five consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not later
than the earlier of the day in question and the day before the "'ex' date"
with respect to the issuance or distribution requiring such computation. The
"Sale Price" for each day means the last reported sales price per share
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and ask prices regular way, in either
case on the New York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which the Common Stock 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, if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on the Nasdaq National
Market, the average of the closing bid and ask 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. For purposes of this paragraph,
the term "'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on such
exchange or in such market without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Price shall be required
unless such adjustment (plus any adjustments not previously made by reason of
this paragraph (9)) would require an increase or decrease of at least 1% in such
price; PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph
(9) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (9) shall be
made to the nearest cent or to the nearest one hundredth of a share, as the case
may be. Unless any other provision of this Section 4.05 (including but not
limited to paragraphs (1) through (7)) is applicable, no adjustment need be made
for a change in the par value or no par value of the Common Stock.
(10) The Company may make such reductions in the Conversion
Price, in addition to those required by this Section 4.05, as it considers to be
advisable in order to avoid or diminish any income tax to any holders of shares
of Common Stock resulting from any dividend or distribution of stock or issuance
of rights, options or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes or for any other reasons. The
Company from time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least twenty (20) business days, the
reduction is irrevocable during the period, and the Board of Directors of the
Company shall have made a determination that such reduction would be in the best
interest of the Company, which determination shall be conclusive; PROVIDED,
HOWEVER, that no such reduction shall be taken into account for purposes of
determining whether the Sale Price of the Common Stock equals or exceeds 105% of
the Conversion Price
-15-
in connection with an event which would otherwise be a Change in Control
pursuant to Section 5.01 hereof. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to Holders of record
of the 2008 Debentures a notice of the reduction at least fifteen (15) days
prior to the date the reduced Conversion Price takes effect, and such notice
shall state the reduced Conversion Price and the period it will be in effect.
The Company shall have the power to resolve any ambiguity or correct any error
in this paragraph (10) and its actions in so doing shall be final and
conclusive.
(11) Notwithstanding the foregoing provisions of this Section
4.05, no adjustment of the Conversion Price shall be required to be made (a)
upon the issuance of shares of Common Stock pursuant to any present or future
plan for the reinvestment of dividends or (b) because of a tender or exchange
offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or
any successor rule thereto.
SECTION 4.06 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 4.05 hereof and shall prepare an Officers' Certificate,
one of the signatories of which shall be the Treasurer of the Company, setting
forth the adjusted Conversion Price and the adjusted Conversion Rate and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion of 2008 Debentures pursuant to Section 1002 of the
Indenture; 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 the Trustee and all Holders at their last addresses as
they shall appear in the Security Register.
SECTION 4.07 NOTICE OF CERTAIN CORPORATE ACTION.
In case at any time after the date hereof:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) exclusively in cash in an
amount that would require an adjustment of the Conversion Price pursuant to
Section 4.05 hereof or (ii) otherwise than exclusively in cash; or
(b) the Company shall authorize the granting to all or
substantially all 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) the Company shall effect 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
-16-
(d) the occurrence of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of 2008 Debentures pursuant to Section 1002 of the
Indenture, 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, share exchange, 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, share exchange, sale, transfer, dissolution, liquidation
or winding up. Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(a) through (d) of this Section 4.07. If at the time the Trustee shall not be
the Conversion Agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
The Company shall cause to be filed at the Corporate Trust
Office and each office or agency maintained for the purpose of conversion of
2008 Debentures pursuant to Section 1002 of the Indenture, and shall cause to be
provided to all Holders, notice of any tender offer by the Company or any
Subsidiary for all or any portion of the Common Stock at or about the time that
such notice of tender offer is provided to the public generally.
SECTION 4.08 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of 2008 Debentures, the full number
of shares of Common Stock then issuable upon the conversion of all Outstanding
2008 Debentures.
SECTION 4.09 TAXES ON CONVERSIONS.
The Company will pay any documentary, stamp or similar issue
or transfer tax due on such issue or delivery of shares of Common Stock on
conversion of 2008 Debentures 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 2008 Debenture or 2008 Debentures 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.
-17-
SECTION 4.10 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of 2008 Debentures, upon such issuance, will have
been duly authorized and validly issued and will be fully paid and nonassessable
and, except as provided in Section 4.09 hereof, the Company will pay all taxes,
liens and charges with respect to the issue thereof.
SECTION 4.11 CANCELLATION OF CONVERTED 2008 DEBENTURES.
All 2008 Debentures 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 309 of the Indenture.
SECTION 4.12 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 conveyance, sale, transfer or lease 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 2008 Debenture then Outstanding shall have the right
thereafter, during the period such 2008 Debenture shall be convertible as
specified in Section 4.02 hereof, to convert such 2008 Debenture only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by a holder of the
number of shares of Common Stock of the Company into which such 2008 Debenture
might have been converted immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease, 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 conveyance,
sale, transfer or lease was made, as the case may be ("Constituent Person"), or
an Affiliate of a Constituent Person and (ii) failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease (PROVIDED that if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease by other 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 4.12 the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease 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 Four. The above provisions of this
Section shall similarly apply to successive consolidations, mergers,
conveyances, sales, transfers or leases. Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each 2008
Debenture as provided in Section 106 of the Indenture promptly upon such
execution.
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SECTION 4.13 RIGHTS ISSUED IN RESPECT OF COMMON STOCK.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common
Stock,
(ii) are not exercisable, and
(iii) are also issued in respect of future issuances of Common
Stock
shall not be deemed distributed for purposes of Section 4.05 hereof until the
occurrence of the earliest Trigger Event. In the event any distribution of
rights or warrants and a Trigger Event with respect thereto that occur after
the Issue Date but prior to the date the 2008 Debenture is converted, the
Holder who converts the 2008 Debenture after such Trigger Event, is not
entitled to receive the rights or warrants that would otherwise have been
attached (had the Trigger Event occurred after the conversion) to the shares
of Common Stock received upon such conversion, PROVIDED HOWEVER, that an
adjustment shall be made to the Conversion Price pursuant to Section 4.05(2)
as if the rights were being distributed to the holders of Common Stock of the
Company immediately prior to such conversion. In addition, in the event of
any distribution of rights or warrants, or any Trigger Event with respect
thereto, that shall have resulted in an adjustment to the Conversion Price
under Section 4.05(2) hereof, (1) in the case of any rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Price shall be readjusted upon such final redemption
or repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and (2) in the case of any such rights or
warrants all of which shall have expired without exercise by any holder
thereof, the Conversion Price shall be readjusted as if such rights or
warrants had not been issued.
SECTION 4.14 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock or of any securities or property or cash which may at
any time be issued or delivered upon the conversion of any 0000 Xxxxxxxxx; and
neither the Trustee nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property upon the surrender of any 2008 Debenture for the purpose
of conversion, or, subject to Section 601 of the Indenture, to comply with any
of the covenants of the Company contained in this Article Four.
-19-
ARTICLE FIVE
REPURCHASE OF 2008 DEBENTURES AT OPTION OF HOLDER
UPON A CHANGE IN CONTROL
SECTION 5.01 GENERAL.
The Company may be required to repurchase 2008 Debentures in
accordance with their terms and in accordance with this Article.
(1) If at any time that 2008 Debentures remain Outstanding
there shall occur a Change in Control, 2008 Debentures shall be repurchased by
the Company at the option of the Holders thereof as of the date that is 35
Business Days after the occurrence of the Change in Control (the "Repurchase
Date") at a repurchase price equal to 100% of the principal amount of the 2008
Debentures to be repurchased plus interest accrued and unpaid to, but excluding,
the Repurchase Date (the "Repurchase Price"); PROVIDED, HOWEVER, that
installments of interest on 2008 Debentures whose Stated Maturity is on or prior
to the Repurchase Date shall be payable to the Holders of such 2008 Debentures,
or one or more Predecessor 2008 Debentures, registered as such on the relevant
Record Date according to their terms and the provisions of Section 307 of the
Indenture and Section 2.03 of this Second Supplemental Indenture. Such right to
require the repurchase of the 2008 Debentures shall not continue after a
discharge of the Company from its obligations with respect to the 2008
Debentures in accordance with Article Four of the Indenture, unless a Change in
Control shall have occurred prior to such discharge. At the option of the
Company, the Repurchase Price may be paid in cash or, subject to the fulfillment
by the Company of the conditions set forth in Section 5.04 hereof, by delivery
of shares of Common Stock as set forth in such Section 5.04. Whenever in the
Indenture and this Second Supplemental Indenture there is a reference, in any
context, to the principal of any 2008 Debenture as of any time, such reference
shall be deemed to include reference to the Repurchase Price payable in respect
of such 2008 Debenture to the extent that such Repurchase Price is, was or would
be so payable at such time, and express mention of the Repurchase Price in any
provision of the Indenture and this Second Supplemental Indenture shall not be
construed as excluding the Repurchase Price in those provisions thereof when
such express mention is not made.
A "Change in Control" shall be deemed to have occurred at the
time, after the original issuance of the 2008 Debentures, of:
(A) the acquisition by any person or group 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, other than
any such acquisition by the Company, any Subsidiary of the Company or
any employee benefit plan of the Company existing on the date of this
Second Supplemental Indenture; or
(B) any consolidation or merger of the Company with or into
any other person, or any merger of another person with or into the
Company, or any conveyance, transfer, sale, lease or
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similar disposition of all or substantially all of the Company's assets
to another person (other than any such transaction (x) that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock, (y) pursuant to which holders of
50% or more of the total voting power of all shares of the Company's
Capital Stock entitled to vote generally in the election of directors
immediately preceding such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power
of all shares of Capital Stock entitled to vote generally in the
election of directors of the continuing or surviving person immediately
after such transaction or (z) that is effected solely to change the
jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of
Common Stock into solely shares of common stock of the surviving
entity);
PROVIDED, HOWEVER, that a Change in Control shall not be deemed to have
occurred if:
(X) the Sale 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 (A) 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 (B) above) shall equal or
exceed 105% of the Conversion Price of the 2008 Debentures in effect on
each such Trading Day; or
(Y) all of the consideration, excluding cash payments for
fractional shares and cash payments made pursuant to dissenters'
appraisal rights, in a merger or consolidation otherwise constituting a
Change in Control consists of shares of common stock traded on a
national securities exchange or quoted on the Nasdaq National Market,
or will be so traded or quoted immediately following such merger or
consolidation, and as a result of such merger or consolidation the 2008
Debentures become convertible solely into such common stock.
For the purpose of the definition of "Change in Control", (i)
"person" and "group" have the meanings given such terms under Section 13(d) and
14(d) of the Exchange Act or any successor provision to either of the foregoing,
and the term "group" includes any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 3d-5(b)(1) under
the Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, except
that the number of shares of Voting Stock of the Company shall be deemed to
include, in addition to all outstanding shares of Voting Stock of the Company
and Unissued Shares deemed to be held by the "person" or "group" (as such terms
are defined above) or other person with respect to which the Change in Control
determination is being made, all Unissued Shares deemed to be held by all other
persons, and (iii) the terms "beneficially owned" and "beneficially own" shall
have meanings correlative to that of "beneficial owner". The term "Unissued
Shares" means shares of Voting Stock not outstanding that are subject to
options, warrants, rights to purchase or conversion privileges exercisable
within 60 days of the date of determination of a Change in Control.
(2) Within 15 Business Days after the occurrence of a Change
in Control, the Company shall give a written notice of the Change in Control to
the Trustee and to each Holder (the "Change in Control Notice"). Failure to give
such Change in Control Notice shall constitute an Event of Default under Section
501 of the Indenture. The notice shall include the form of a Repurchase Notice
to
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be completed by the Holder, which shall include the information required
pursuant to Section 5.01(3) hereof, and shall state:
(A) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(B) the date by which the Repurchase Notice pursuant to this
Section 5.01 must be given;
(C) the Repurchase Date;
(D) the Repurchase Price;
(E) briefly, the Conversion Rights of the 2008 Debentures;
(F) the name and address of each Paying Agent and Conversion
Agent;
(G) the Conversion Price and any adjustments thereto;
(H) that 2008 Debentures as to which a Repurchase Notice has
been given may be converted into Common Stock pursuant to Article Four
only to the extent that the Repurchase Notice has been withdrawn in
accordance with the terms of this Second Supplemental Indenture;
(I) the procedures that the Holder must follow to exercise
rights under this Section 5.01;
(J) the procedures for withdrawing a Repurchase Notice,
including a form of notice of withdrawal; and
(K) that the Holder must satisfy the requirements set forth in
the 2008 Debentures in order to convert the 2008 Debentures.
If any of the 2008 Debentures is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to the repurchase of
Global Securities.
(3) A Holder may exercise its rights specified in subsection
(1) of this Section 5.01 upon delivery of a written notice of the exercise of
such rights (a "Repurchase Notice") to the Paying Agent at any time prior to the
close of business on the Business Day immediately preceding the Repurchase Date
stating:
(A) the certificate number of the 2008 Debenture which the
Holder will deliver to be repurchased,
(B) the portion of the principal amount of the 2008 Debenture
which the Holder will deliver to be repurchased, which portion must be
$1,000 or an integral multiple thereof,
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(C) that such 2008 Debenture shall be repurchased as of the
Repurchase Date pursuant to the terms and conditions specified under
the paragraph "Repurchase of 2008 Debentures at the Option of the
Holder Upon a Change in Control" of the 2008 Debentures and in this
Second Supplemental Indenture, and
(D) in the event that the Company elects, pursuant to Section
5.02 hereof, to pay the Repurchase Price to be paid as of such
Repurchase Date, in whole or in part, in Common Stock but such portion
of the Repurchase Price shall ultimately be payable to such Holder
entirely in cash because any of the conditions to payment of the
Repurchase Price in Common Stock is not satisfied prior to the close of
business on such Repurchase Date, as set forth in Section 5.04 hereof,
whether such Holder elects (i) to withdraw such Repurchase Notice as to
some or all of the 2008 Debentures to which such Repurchase Notice
relates (stating the principal amount and certificate numbers of the
2008 Debentures as to which such withdrawal shall relate), or (ii) to
receive cash in respect of the entire Repurchase Price for all 2008
Debentures (or portions thereof) to which such Repurchase Price
relates.
(4) The delivery of such 2008 Debenture to the Paying Agent
(together with all necessary endorsements) at the office of such Paying Agent
shall be a condition to the receipt by the Holder of the Repurchase Price
therefor.
If a Holder, in such Repurchase Notice or in any written
notice of withdrawal delivered by such Holder pursuant to the terms of Section
5.09 hereof, fails to indicate such Holder's choice with respect to the election
set forth in clause (D) of Section 5.01(3), such Holder shall be deemed to have
elected to receive cash in respect of the Repurchase Price for all 2008
Debentures subject to the Repurchase Notice in the circumstances set forth in
such clause (D).
The Company shall repurchase from the Holder thereof, pursuant
to this Section 5.01, a portion of a 2008 Debenture only if the principal amount
of such portion is $1,000 or an integral multiple of $1,000. Provisions of the
Indenture and this Second Supplemental Indenture that apply to the repurchase of
all of a 2008 Debenture pursuant to Sections 5.02 through 5.10 hereof also apply
to the repurchase of such portion of such 2008 Debenture.
If any 2008 Debenture (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount of
such 2008 Debenture (or portion thereof, as the case may be) shall, until paid,
bear interest to the extent permitted by applicable law from the Repurchase Date
at the rate of 3.50% per annum, and each 2008 Debenture shall remain convertible
into Common Stock until the principal of such 2008 Debenture (or portion
thereof, as the case may be) shall have been paid or duly provided for.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Repurchase Notice contemplated by this
subsection (4) shall have the right to withdraw such Repurchase Notice in whole
or in a portion thereof that is a principal amount of $1,000 or in an integral
multiple thereof at any time prior to the close of business on the Business Day
immediately preceding the Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 5.09 hereof.
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The Paying Agent shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Repurchase Notice may be delivered or withdrawn and
such 2008 Debentures may be surrendered or delivered for repurchase in
accordance with the applicable procedures of the Depositary as in effect from
time to time.
SECTION 5.02 THE COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF REPURCHASE PRICE.
The Repurchase Price of 2008 Debentures in respect of which a
Repurchase Notice pursuant to Section 5.01 hereof has been given, or a specified
percentage thereof, will be paid by the Company, at the election of the Company,
with cash or Common Stock or in any combination of cash and Common Stock,
subject to the conditions set forth in Sections 5.03, 5.04 and 5.05 hereof. The
Company shall designate, in the Company Notice delivered pursuant to Section
5.05 hereof, whether the Company will repurchase the 2008 Debentures for cash or
Common Stock, or, if a combination thereof, the percentages of 2008 Debentures
in respect of which it will pay in cash and Common Stock; PROVIDED that the
Company will pay cash for fractional shares of Common Stock. For purposes of
determining the existence of potential fractional interests, all 2008 Debentures
subject to repurchase by the Company held by a Holder shall be considered
together (no matter how many separate certificates are to be presented). Each
Holder whose 2008 Debentures are repurchased pursuant to this Article Five shall
receive the same percentage of cash or Common Stock in payment of the Repurchase
Price for such 2008 Debentures, except (i) as provided in Section 5.04 hereof
with regard to the payment of cash in lieu of fractional shares of Common Stock
and (ii) in the event that the Company is unable to repurchase the 2008
Debentures of a Holder or Holders for Common Stock because any necessary
qualifications or registrations of the Common Stock under applicable state
securities laws cannot be obtained, the Company may repurchase the 2008
Debentures of such Holder or Holders for cash. The Company may not change its
election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Holders except pursuant to this Section 5.02 or pursuant to Section 5.04 in the
event of a failure to satisfy, prior to the close of business on the Repurchase
Date, any condition to the payment of the Repurchase Price, in whole or in part,
in Common Stock.
At least three Business Days before the Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 5.05 hereof,
(iii) if the Company elects to pay the Repurchase Price, or a
specified percentage thereof, in Common Stock, that the conditions to
such manner of payment set forth in Section 5.04 hereof have been or
will be complied with, and
(iv) whether the Company directs the Trustee to give the
Company Notice required by Section 5.05 hereof.
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SECTION 5.03 REPURCHASE WITH CASH.
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2008 Debentures in respect of which a Repurchase Notice
pursuant to Section 5.01 hereof has been given, or a specified percentage
thereof, may be paid by the Company with cash equal to the aggregate Repurchase
Price of such 2008 Debentures. If the Company elects to repurchase 2008
Debentures with cash, the Company Notice, as provided in Section 5.05 hereof,
shall be sent to Holders (and to beneficial owners as required by applicable
law) not less than 20 Business Days prior to such Repurchase Date (the "Company
Notice Date").
SECTION 5.04 PAYMENT BY ISSUANCE OF COMMON STOCK.
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2008 Debentures in respect of which a Repurchase Notice
pursuant to Section 5.01 hereof has been given, or a specified percentage
thereof, may be paid by the Company by the issuance of a number of shares of
Common Stock equal to the quotient obtained by dividing (i) the amount of cash
to which the Holders would have been entitled had the Company elected to pay all
or such specified percentage, as the case may be, of the Repurchase Price of
such 2008 Debentures in cash by (ii) 95% of the Market Price of a share of
Common Stock, subject to the immediately succeeding paragraph.
The Company will not issue a fractional share of Common Stock
in payment of the Repurchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of
fractional shares of Common Stock shall be determined by multiplying the Market
Price by such fraction and rounding the product to the nearest whole cent with
one half cent being rounded upwards. It is understood that if a Holder elects to
have more than one 2008 Debenture repurchased, the number of shares of Common
Stock shall be based on the aggregate amount of 2008 Debentures to be
repurchased. If the Company elects to repurchase the 2008 Debentures by the
issuance of Common Stock, the Company Notice, as provided in Section 5.05 of
this Second Supplemental Indenture, shall be sent to the Holders (and to
beneficial owners as required by applicable law) not later than the Company
Notice Date.
The Company's right to exercise its election to repurchase the
2008 Debentures pursuant to this Article Five through the issuance of Common
Stock shall be conditioned upon:
(i) the Company not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of election to repurchase all or a specified percentage of the
2008 Debentures with Common Stock as provided herein;
(ii) the registration of the Common Stock to be issued in
respect of the payment of the Repurchase Price under the Securities Act
or the Exchange Act, in each case, if required for the initial issuance
thereof;
(iii) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
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(iv) the receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel each stating that (A) the terms of the
issuance of the Common Stock are in conformity with this Second
Supplemental Indenture and (B) the Common Stock to be issued by the
Company in payment of the Repurchase Price in respect of 2008
Debentures has been duly authorized and, when issued and delivered
pursuant to the terms of this Second Supplemental Indenture in
payment of the Repurchase Price in respect of the 2008 Debentures,
will be validly issued, fully paid and non-assessable and, to the
best of such counsel's knowledge, free from preemptive rights, and,
in the case of such Officer's Certificate, stating that conditions
(i), (ii) and (iii) above and the condition set forth in the second
sentence of the following paragraph have been satisfied and, in the
case of such Opinion of Counsel, stating that conditions (ii) and
(iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 principal amount of 2008
Debentures and the Sale Price of a share of Common Stock on each Trading Day
during the period commencing on the first Trading Day of the period during which
the Market Price is calculated and ending on the third Trading Days prior to the
applicable Repurchase Date. The Company may pay the Repurchase Price (or any
portion thereof) in Common Stock only if the information necessary to calculate
the Market Price is published in The Wall Street Journal or another daily
newspaper of national circulation. If the foregoing conditions are not satisfied
with respect to a Holder or Holders prior to the close of business on the
Repurchase Date and the Company has elected to repurchase the 2008 Debentures
pursuant to this Article Five in whole or in part through the issuance of Common
Stock, the Company shall pay, without further notice, the entire Repurchase
Price of the 2008 Debentures of such Holder or Holders in cash. The "Market
Price" in this Article Five means the average of the Sale Prices of the Common
Stock for the five Trading Day period immediately preceding and including the
third Trading Day prior to the applicable Repurchase Date appropriately adjusted
to take into account the occurrence of any event described in Section 4.05
hereof, during the period commencing on the first of such Trading Days during
such five Trading Day period and ending on such Repurchase Date.
SECTION 5.05 NOTICE OF ELECTION.
The Company's notice of election to repurchase with cash or
Common Stock or any combination thereof shall be sent to the Holders in the
manner provided in Section 106 of the Indenture at the time specified in Section
5.03 or 5.04 hereof, as applicable (the "Company Notice"). Such Company Notice
shall state the manner of payment elected and shall contain the following
information:
In the event the Company has elected to pay the Repurchase
Price (or a specified percentage thereof) with Common Stock, the
Company Notice shall:
(1) state that each Holder will receive Common Stock
with a value, based on the calculation in the first paragraph
of Section 5.04 hereof, equal to such specified percentage of
the Repurchase Price of the 2008 Debentures held by such
Holder (except any cash amount to be paid in lieu of
fractional shares of Common Stock);
(2) set forth the method of calculating the Market
Price of the Common Stock; and
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(3) state that because the Market Price of Common
Stock will be determined prior to the Repurchase Date, Holders
will bear the market risk with respect to the value of the
Common Stock to be received from the date such Market Price is
determined to the Repurchase Date.
In any case, each Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:
(A) the Repurchase Price and the Conversion Price;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that the 2008 Debentures as to which a Repurchase
Notice has been given may be converted pursuant to Article
Four hereof only if the applicable Repurchase Notice has been
withdrawn in accordance with the terms of this Second
Supplemental Indenture;
(D) that 2008 Debentures must be surrendered to the
Paying Agent to collect payment;
(E) that the Repurchase Price for any 2008 Debenture
as to which a Repurchase Notice has been given and not
withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such 2008
Debenture as described in (D);
(F) the procedures the Holder must follow to exercise
repurchase rights under this Article Five and a brief
description of those rights;
(G) briefly, the Conversion Rights of the 2008
Debentures; and
(H) the procedures for withdrawing a Repurchase
Notice (including, without limitation, for a conditional
withdrawal pursuant to the terms of Section 5.01 or 5.09
hereof).
At the Company's written direction, the Trustee shall give
such Company Notice in the Company's name and at the Company's expense;
PROVIDED, HOWEVER, that, in all cases, the text of such Company Notice shall be
prepared by the Company. The Trustee shall bear no responsibility or liability
with respect to the accuracy of the content of the Company Notice.
SECTION 5.06 COVENANTS OF THE COMPANY.
All Common Stock delivered upon repurchase of the 2008
Debentures shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim. The Company shall use
its reasonable efforts to list or cause to have quoted any Common Stock to be
issued to repurchase 2008 Debentures on the principal national securities
exchange or over-the-counter or other domestic market on which the Common Stock
is then listed or quoted.
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SECTION 5.07 PROCEDURE UPON REPURCHASE.
The Company shall deposit cash (in respect of a cash
repurchase under Section 5.03 hereof or for fractional shares of Common Stock,
as applicable) or Common Stock, or a combination thereof, as applicable, at the
time and in the manner as provided in Section 5.10 hereof, sufficient to pay the
aggregate Repurchase Price of all 2008 Debentures to be repurchased on the
applicable Repurchase Date pursuant to this Article Five.
As soon as practicable after the Repurchase Date, the Company
shall deliver to each Holder entitled to receive Common Stock through the Paying
Agent, a certificate for the number of full shares of Common Stock issuable in
payment of the Repurchase Price and cash in lieu of any fractional shares of
Common Stock. The Person in whose name the certificate for Common Stock is
registered shall be treated as a holder of record of Common Stock on the
Business Day following the Repurchase Date. Subject to Section 5.04 hereof, no
payment or adjustment will be made for dividends on the Common Stock the record
date for which occurred on or prior to the Repurchase Date.
SECTION 5.08 TAXES.
If a Holder of a 2008 Debenture is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax or
charge due on such issue of Common Stock. However, the Holder shall pay any such
tax or charge which is due because the Holder requests the Common Stock to be
issued in a name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum sufficient to
pay any tax or charge which will be due because the shares of Common Stock are
to be issued in a name other than the Holder's name.
SECTION 5.09 EFFECT OF REPURCHASE NOTICE.
Upon receipt by the Paying Agent of the Repurchase Notice, the
Holder of the 2008 Debenture in respect of which such Repurchase Notice was
given shall (unless such Repurchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Repurchase Price with respect to such 2008 Debenture. Such Repurchase Price
shall be paid to such Holder, subject to receipt of funds and/or Common Stock by
the Paying Agent, promptly following the later of (x) the Repurchase Date with
respect to such 2008 Debenture (PROVIDED the conditions in Section 5.01 hereof
have been satisfied) and (y) the time of delivery of such 2008 Debenture to the
Paying Agent by the Holder thereof in the manner required by Section 5.01
hereof. Any 2008 Debentures in respect of which a Repurchase Notice has been
given may not be converted pursuant to Article Four hereof on or after the date
of the delivery of such Repurchase Notice unless such Repurchase Notice has
first been validly withdrawn in accordance with the following two paragraphs.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Repurchase Notice at any time prior to the close of business on the
Business Day immediately preceding the applicable Repurchase Date specifying:
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(1) the certificate number of the 2008 Debenture in respect of
which such notice of withdrawal is being submitted;
(2) the principal amount of the 2008 Debenture with respect to
which such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such 2008 Debenture which
remains subject to the original Repurchase Notice and which has been or
will be delivered for repurchase by the Company.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the terms of
Section 5.01(3)(D) hereof or (ii) a conditional withdrawal containing the
information set forth in Section 5.01(3)(D) hereof and the preceding paragraph
and contained in a written notice of withdrawal delivered to the Paying Agent as
set forth in the preceding paragraph.
There shall be no repurchase of any 2008 Debentures pursuant
to this Article Five (other than through the issuance of Common Stock in payment
of the Repurchase Price, including cash in lieu of fractional shares of Common
Stock) if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such 2008 Debentures, of the required Repurchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such 2008 Debentures). The
Paying Agent will promptly return to the respective Holders thereof any (x) 2008
Debentures with respect to which a Repurchase Notice has been withdrawn in
compliance with this Second Supplemental Indenture, or (y) except to the extent
such 2008 Debentures are being paid in shares of Common Stock, any 2008
Debentures held by it during the continuance of an Event of Default (other than
a default in the payment of the Repurchase Price with respect to such 2008
Debentures), in which case, upon such return, the Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.
SECTION 5.10 DEPOSIT OF REPURCHASE PRICE.
Prior to 11:00 a.m. (New York City time) on the Repurchase
Date, the Company shall deposit with the Paying Agent an amount of money (in
immediately available funds) and/or Common Stock, if permitted hereunder,
sufficient to pay the aggregate Repurchase Price of all of the 2008 Debentures
or portions thereof which are to be repurchased as of the Repurchase Date. If a
Paying Agent holds, in accordance with the terms hereof, money, and/or shares of
Common Stock sufficient to pay the Repurchase Price of any 2008 Debenture for
which a Repurchase Notice has been tendered and not withdrawn in accordance with
this Second Supplemental Indenture then, on the Repurchase Date, such 2008
Debenture will cease to be Outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Repurchase Price as
aforesaid).
The manner in which the deposit required by this Section 5.10
is made by the Company shall be at the option of the Company, PROVIDED that such
deposit shall be made in a manner such that a Paying Agent shall have
immediately available funds and/or shares of Common Stock by 11:00 a.m. (New
York City time) on the Repurchase Date.
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SECTION 5.11 2008 DEBENTURES REPURCHASED IN PART.
Any 2008 Debenture which is to be repurchased only in part
shall be surrendered at the office of the Paying Agent (with, if the Company or
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company or Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
2008 Debenture, without service charge, a new 2008 Debenture or 2008 Debentures,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the 2008 Debenture so surrendered which is not repurchased.
SECTION 5.12 COMPLY WITH SECURITIES LAWS UPON REPURCHASE OF 2008 DEBENTURES.
Unless the staff of the Securities and Exchange Commission
shall issue a letter stating that it will take no action against the Company if
it does not comply in connection with any offer to repurchase or any repurchase
of 2008 Debentures under this Article Five (if such offer or repurchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or repurchase), the Company shall (i) comply with Rule
13e-4 under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and
obligations under this Article Five to be exercised in the time and in the
manner specified in this Article Five.
SECTION 5.13 REPAYMENT TO THE COMPANY.
The Paying Agent shall, upon Company Request, return to the
Company any cash or Common Stock that remain unclaimed for two years, subject
to applicable unclaimed property law, together with interest or dividends, if
any, thereon held by the Paying Agent for the payment of the Repurchase
Price; PROVIDED, HOWEVER, that to the extent that the aggregate amount of
cash or Common Stock deposited by the Company pursuant to Section 5.10 hereof
exceeds the aggregate Repurchase Price of the 2008 Debentures or portions
thereof which the Company is obligated to repurchase as of the Repurchase
Date, then promptly after the Business Day following the Repurchase Date the
Paying Agent shall, upon Company Request, return any such excess to the
Company together with interest or dividends, if any, thereon. After that,
Holders entitled to cash or Common Stock must look to the Company for payment
as general creditors, unless an applicable abandoned property law designates
another Person, and all liabilities of the Paying Agent with respect to such
cash or Common Stock shall thereupon cease.
SECTION 5.14 CONVERSION ARRANGEMENT ON REPURCHASE.
Any 2008 Debentures required to be repurchased by the Company
under this Article Five, unless surrendered for conversion before the close of
business on the Business Day immediately preceding the Repurchase Date, may be
deemed to be purchased from the Holders of such 2008 Debentures for an amount in
cash not less than the Repurchase Price, by one or more investment bankers or
other purchasers who may agree with the Company to purchase such 2008 Debentures
from the Holders, to convert them into Common Stock of the Company and to make
payment for such 2008 Debentures to the Paying Agent in trust for such Holders.
The Paying Agent shall hold and pay to the Holders whose 2008 Debentures are
repurchased any such amount paid to it for purchase in the same manner as it
would money deposited with
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it by the Company for the repurchase of 2008 Debentures. Without the Paying
Agent's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any 2008 Debentures shall increase
or otherwise affect any of the powers, duties, responsibilities or obligations
of the Paying Agent as set forth in the Indenture and this Second Supplemental
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any 2008
Debentures between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
reasonably incurred without negligence or bad faith on its part arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under the Indenture and this Second Supplemental
Indenture, in accordance with the indemnity provisions applicable to the Trustee
set forth in the Indenture.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
SECTION 6.01 INTEGRAL PART.
This Second Supplemental Indenture constitutes an integral
part of the Indenture as provided herein and therein.
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SECTION 6.02 GENERAL DEFINITIONS.
For all purposes of this Second Supplemental Indenture, the
terms "herein", "hereof", "hereunder" and other words of similar import refer to
this Second Supplemental Indenture.
SECTION 6.03 ADOPTION, RATIFICATION AND CONFIRMATION.
The Indenture, as supplemented by this Second Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 6.04 EFFECT OF FIRST SUPPLEMENTAL INDENTURE.
None of the provisions of the First Supplemental Indenture
shall apply to the 2008 Debentures unless otherwise provided in this Second
Supplemental Indenture.
SECTION 6.05 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Second Supplemental Indenture.
SECTION 6.06 EFFECTIVENESS.
This Second Supplemental Indenture shall be effective as of
the date hereof.
SECTION 6.07 COUNTERPARTS.
This Second Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 6.08 GOVERNING LAW.
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto fixed and attested as of the day and year first written above.
CORNING INCORPORATED
By:
-----------------------------
Name:
Title:
XXXXX XX XXX XXXX
XXXXXX XX
--------------------------
Xx the day of November, 2001, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is _____________________________ of CORNING INCORPORATED, 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 Directors
of said corporation, and that he signed his name thereto by like authority.
Notary
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JPMORGAN CHASE BANK
By:
----------------------------
Name:
Title:
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx the ____ day of November, 2001, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that such person is an authorized officer of JPMORGAN CHASE BANK, one of
the entities described in and which executed the foregoing instrument; that he
or 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
Directors of said corporation, and that such person signed his or her name
thereto by like authority.
Notary
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ANNEX A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
FORM OF 3.50% CONVERTIBLE DEBENTURES
DUE NOVEMBER 1, 2008
CORNING INCORPORATED
Issue Date: November [x], 2001 Maturity: November 1, 2008
Principal Amount: $__________ CUSIP: 219350ak1
Registered: No. R-
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company (the "Depositary") and any payment is made to Cede & Co., or such
other name requested by the Depositary ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Corning Incorporated, a New York corporation (herein called
the "Company", which term includes any successor corporation under the indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $___________ on November 1,
2008, and to pay interest thereon from November [x], 2001 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 1 and November 1 in each year, commencing May 1, 2002,
and at the Stated Maturity thereof, at the rate of 3.50% per annum, until the
principal hereof is paid or made available for payment, PROVIDED that any
principal and premium, and
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any such installment of interest, which is overdue shall bear interest at the
rate of 3.50% per annum (to the extent that the payment of such Defaulted
Interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
installment of interest, which shall be the April 15 or October 15 (whether or
not a Business Day), as the case may be, immediately preceding such Interest
Payment Date. Any such interest so payable, but not punctually paid or duly
provided for, on any Interest Payment Date will forthwith cease to be payable to
the Holder on such Regular Record Date and may 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 of this series not less than 10 days prior to such Special Record
Date or, if this Security is listed on any securities exchange, may be paid in
any other lawful manner not inconsistent with the requirements of such
securities exchange and upon such notice as may be required by such securities
exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
The City of New York, 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, against surrender of this Security in the case of any payment due at the
Stated Maturity of the principal thereof (other than any payment of interest
that first becomes payable on a day other than an Interest Payment Date);
PROVIDED, HOWEVER, that at the option of the Company, payment of interest may be
made by check mailed to the address of the Paying Agent or the Person entitled
thereto as such address shall appear in the Security Register; and PROVIDED,
FURTHER, that payment may be made pursuant to the Applicable Procedures of the
Depositary as permitted in the Indenture.
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: November __, 2001
CORNING INCORPORATED
By:
----------------------------
Name:
Title:
--------------------------
Corporate Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
-------------------------------
Authorized Signature
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[FORM OF REVERSE SIDE OF SECURITY]
CORNING INCORPORATED
3.50% CONVERTIBLE DEBENTURE DUE NOVEMBER 1, 2008
This Security is one of a duly authorized issue of senior
unsecured securities of the Company (herein called the "Securities"), issued and
to be issued in one or more series under an Indenture, dated as of November 8,
2000, as supplemented by the Second Supplemental Indenture (the "Second
Supplemental Indenture") thereto, dated as of November __, 2001 (as so
supplemented, herein called the "Indenture"), between the Company and JPMorgan
Chase Bank, formerly known as The Chase Manhattan Bank, 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 and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $600,000,000 (plus the
amount in which the Underwriters exercise their option to purchase addition
Securities, such amount not to exceed $90,000,000).
OPTIONAL REDEMPTION
No sinking fund is provided for the Securities. The Securities
are redeemable as a whole, or from time to time in part, at any time at the
option of the Company at the Redemption Price set forth below, on or after
November 8, 2004. The Redemption Price, expressed as a percentage of principal
amount, is as follows for the following periods:
PERIOD REDEMPTION PRICE
------ ----------------
Beginning on November 8, 2004 and ending on October 31, 2005 102.00%
Beginning on November 1, 2005 and ending on October 31, 2006 101.50%
Beginning on November 1, 2006 and ending on October 31, 2007 101.00%
Beginning on November 1, 2007 and ending on October 31, 2008 100.50%
and thereafter is equal to 100% of the principal amount, in each case together
with accrued and unpaid interest to, but excluding, the Redemption Date.
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.
If the Company redeems less than all of the Outstanding
Securities, the Trustee will select the Securities to be redeemed (i) by lot;
(ii) pro rata; or (iii) by another method the Trustee considers fair and
appropriate. If the Trustee selects a portion of a Holder's Securities for
partial redemption and the
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Holder converts a portion of the same Securities, the converted portion will be
deemed to be from the portion selected for redemption, and a new Security or
Securities of this series and of like tenor for the unredeemed portion thereof
will be issued in the name of the Holder thereof upon the cancellation thereof.
Notice of optional redemption by the Company will be mailed by
first-class mail at least 15 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 principal amount may be
redeemed in part, but only in whole multiples of $1,000. On and after the
Redemption Date, subject to the deposit with the Paying Agent of funds
sufficient to pay the Redemption Price, interest ceases to accrue on Securities
or portions thereof called for redemption.
CONVERSION
A Holder of a Security may convert the Security into Common
Stock at any time until the close of business on the Business Day immediately
preceding the Stated Maturity; PROVIDED, HOWEVER, that if the Security is called
for redemption or the Holder thereof exercises its right to require the Company
to repurchase the Security upon a Change in Control, the Conversion Right will
terminate at the close of business on the Business Day immediately preceding the
Redemption Date or Repurchase Date, as the case may be, for such Security
(unless the Company shall default in making the redemption or repurchase payment
when due, in which case the Conversion Right shall terminate at the close of
business on the date such default is cured and such Security is redeemed or
repurchased). Any Security in respect of which a Repurchase Notice has been
given may not be converted unless such Repurchase Notice has first been validly
withdrawn in accordance with Section 5.09 of the Second Supplemental Indenture.
The initial Conversion Price is $9.6750 per share of Common Stock, subject to
adjustment in certain events described in the Indenture. This is equivalent to
a Conversion Rate of 103.3592 shares of Common Stock per $1,000 principal
amount of Securities.
No fractional shares of Common Stock will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
closing price of the Common Stock on the Trading Day immediately preceding the
Conversion Date.
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice and deliver such notice to the Conversion Agent, (b)
surrender the Security to the Conversion Agent, (c) furnish appropriate
endorsements and transfer documents (including any certification that may be
required under applicable law) if required by the Conversion Agent, and (d) pay
any transfer or similar tax, if required.
In case the surrender of the Securities for conversion shall
be made during a Record Date Period, the Securities surrendered shall (except if
this Security or portion hereof has been called for redemption on a Redemption
Date or the Holder hereof exercises its right to require the Company to
repurchase this Security upon a Change in Control on a Repurchase Date
occurring, in either case, within such Record Date Period or on the Interest
Payment Date immediately following the Record Date Period and, as a result, the
right to convert this Security would otherwise terminate within such Record Date
Period if not exercised), be accompanied by payment in New York Clearing House
or other funds acceptable to the Company of an amount equal to the interest
payable on the Interest Payment Date immediately following such Record Date
Period on the principal amount of this Security then being converted, PROVIDED,
that if this Security or portion hereof has been called for redemption on a
Redemption
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Date or is repurchasable upon a Change in Control on a Repurchase Date
occurring, in either case, within any Record Date Period or on the Interest
Payment Date immediately following the Record Date Period and, as a result, the
right to convert this Security would otherwise terminate within such Record Date
Period if not exercised and this Security is surrendered for conversion during
such Record Date Period, then the Holder of this Security on such Interest
Payment Date will be entitled to receive the interest accruing hereon from the
Interest Payment Date immediately preceding the date of such conversion to such
succeeding Interest Payment Date and the Holder of this Security who converts
this Security or a portion hereof during such Record Date Period shall not be
required to pay such interest upon surrender of this Security for conversion.
Subject to the provisions of the preceding sentence and, in the case of a
conversion within a Record Date Period, to the right of the Holder of this
Security (or any Predecessor Security of record as of such Regular Record Date)
to receive the related installment of interest to the extent and under the
circumstances provided in the Indenture, no cash payment or adjustment is to be
made on conversion for interest accrued hereon from the Interest Payment Date
immediately preceding the day of conversion, or for dividends on the Common
Stock issued on conversion hereof.
The Company shall thereafter deliver to the Holder the fixed
number of shares of Common Stock (together with any cash adjustment, as provided
in the Indenture) into which its Security is convertible and such delivery will
be deemed to satisfy the Company's obligations to pay the principal amount of
this Security.
The Conversion Price is subject to adjustment as provided in
the Indenture. No adjustment in the Conversion Price will be made until such
adjustment would require an increase or decrease of at least one percent of such
price, provided that any adjustment that would otherwise be made will be carried
forward and taken into the account in the computation of any subsequent
adjustment.
In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party (other than a
consolidation or merger that does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the conveyance,
transfer, sale or lease of all or substantially all the property and 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 the property
receivable upon such consolidation, merger, conveyance, transfer, sale or lease
by a holder of the number of shares of Common Stock of the Company into which
this Security could have been converted immediately prior to such consolidation,
merger, conveyance, transfer, sale or lease (assuming such holder of Common
Stock is not a Constituent Person or an Affiliate of a Constituent Person,
failed to exercise any rights of election and received per share the kind and
amount of securities, cash and property received per share by a plurality of the
Non-Electing Shares).
REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to repurchase
all or any part specified by the Holder (so long as the principal amount of such
part is $1,000 or an integral multiple of $1,000 in excess thereof) of the
Securities held by such Holder on the date that is 35 Business Days after the
occurrence of a Change in Control, at a Repurchase Price equal to 100% of the
principal amount of the Securities to be repurchased plus the interest accrued
and unpaid to, but excluding, the Repurchase Date. The Repurchase Price may be
A-7
paid, at the option of the Company, in cash or by the issuance of Common Stock
having a fair market value equal to the Repurchase Price as provided in Article
Five of the Second Supplemental Indenture, or in any combination thereof. For
purposes of this paragraph, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the closing prices per share for the five consecutive Trading Days immediately
preceding and including the third Trading Day prior to the Repurchase Date. The
Holder shall deliver a Repurchase Notice to the Paying Agent at any time prior
to the close of business on the Business Day immediately preceding the
Repurchase Date in order to exercise its right to require the Company to
repurchase this Security upon a Change in Control. The Holder shall have the
right to withdraw any Repurchase Notice (in whole or in a portion thereof that
is $1,000 principal amount or an integral multiple of $1,000 in excess thereof)
at any time prior to the close of business on the Business Day immediately
preceding the Repurchase Date by delivering a written notice of withdrawal to
the Paying Agent in accordance with the terms of the Indenture.
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION OR REPURCHASE
Any Security called for redemption, or as to which a
Repurchase Notice has been given but not withdrawn, unless surrendered for
conversion before the close of business on the Business Day immediately
preceding the Redemption Date or Repurchase Date, as the case may be, may be
deemed to be purchased from the Holders of such Securities at an amount not less
than the Redemption Price or Repurchase Price, as the case may be, by one or
more investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into Common Stock of
the Company and to make payment for such Securities to the Paying Agent in trust
for such Holders.
TRANSFER
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 maintained by the Company for such purposes in
a Place of Payment for Securities of this series, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of any authorized denominations and for the same aggregate
principal amount, executed by the Company and authenticated and delivered by the
Trustee, will be issued to the designated transferee or transferees.
The Securities of this series 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 set
forth therein and on the face of this Security, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer or exchange, the Company, the Trustee or any agent of the Company or
the Trustee may treat the Person in whose name this
A-8
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the
provisions of the Indenture relating to Global Securities, including the
limitations on transfers and exchanges of Global Securities.
AMENDMENT, SUPPLEMENT AND WAIVER
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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued 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.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of
its predecessor under the Securities and the Indenture in accordance with the
terms and conditions of the Indenture, the predecessor corporation will (except
in certain circumstances specified in the Indenture) be released from those
obligations.
DEFAULTS AND REMEDIES
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of
or the interest on this Security, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise, all such
A-9
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
AUTHENTICATION
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this
Security and the Indenture, the provisions of the Indenture shall control. All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder
or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
All terms defined in the Indenture and used in this Security
but not specifically defined herein are defined in the Indenture and are used
herein as so defined.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company,
check the box: [ ]
To convert only part of this Security, state the principal
amount to be converted (must be $1,000 or a multiple of $1,000): $_____________.
If you want the stock certificate made out in another person's
name, fill in the form below:
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
Your Signature: Date:
------------------------------------ ------------------
(Sign exactly as your name appears on the other side of this Security)
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*Signature guaranteed by:
-------------------------------------------------------
By:
---------------------------------------
*The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty
programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program
(MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
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