Exhibit 4.5
EXECUTION VERSION
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YELLOW CORPORATION
5.0% Contingent Convertible Senior Notes due 2023
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INDENTURE
Dated as of August 8, 2003
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Deutsche Bank Trust Company Americas
TRUSTEE
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)....................................................... 7.10
(a)(2)....................................................... 7.10
(a)(3)....................................................... N.A.
(a)(4)....................................................... N.A.
(a)(5)....................................................... N.A.
(b).......................................................... 7.08,7.10
(c).......................................................... N.A.
311(a).......................................................... 7.11
(b).......................................................... 7.11
(c).......................................................... N.A.
312(a).......................................................... 2.05
(b).......................................................... 12.03
(c).......................................................... 12.03
313(a).......................................................... 7.06
(b)(1)....................................................... 7.06
(b)(2)....................................................... 7.06
(c).......................................................... 7.06
(d).......................................................... 7.06
314(a).......................................................... 4.02,4.03
(b).......................................................... N.A.
(c)(1)....................................................... 12.04
(c)(2)....................................................... 12.04
(c)(3)....................................................... N.A.
(d).......................................................... N.A.
(e).......................................................... 12.05
(f).......................................................... N.A.
315(a).......................................................... 7.01(b)
(b).......................................................... 7.05
(c).......................................................... 7.01
(d).......................................................... 7.01(c)
(e).......................................................... 6.11
316(a)(1)(A).................................................... 6.05
(a)(1)(B).................................................... 6.04
(a)(2)....................................................... N.A.
(b).......................................................... 6.07
(c).......................................................... 1.05(e)
317(a)(1)....................................................... 6.08
(a)(2)....................................................... 6.09
(b).......................................................... 2.04
318(a).......................................................... N.A.
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Other Definitions...............................................5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............6
SECTION 1.04. Rules of Construction...........................................7
SECTION 1.05. Acts of Holders.................................................7
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating.................................................8
SECTION 2.02. Execution and Authentication...................................10
SECTION 2.03. Registrar, Paying Agent and Conversion Agent...................10
SECTION 2.04. Paying Agent to Hold Money in Trust............................11
SECTION 2.05. Securityholder Lists...........................................11
SECTION 2.06. Transfer and Exchange..........................................11
SECTION 2.07. Replacement Securities.........................................13
SECTION 2.08. Outstanding Securities; Determinations of Holders' Action......14
SECTION 2.09. Temporary Securities...........................................14
SECTION 2.10. Cancellation...................................................15
SECTION 2.11. Persons Deemed Owners..........................................15
SECTION 2.12. Global Securities..............................................15
SECTION 2.13. CUSIP Numbers..................................................18
ARTICLE III
REDEMPTION AND PURCHASES
SECTION 3.01. Right To Redeem; Notices To Trustee............................18
SECTION 3.02. Selection of Securities to Be Redeemed.........................18
SECTION 3.03. Notice of Redemption...........................................19
SECTION 3.04. Effect of Notice of Redemption.................................20
SECTION 3.05. Deposit of Redemption Price....................................20
SECTION 3.06. Securities Redeemed in Part....................................20
SECTION 3.07. Reserved.......................................................20
SECTION 3.08. Purchase of Securities at Option of the Holder.................20
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SECTION 3.09. Purchase of Securities at Option of the Holder upon Change
in Control.....................................................23
SECTION 3.10. Effect of Purchase Notice or Change in Control Purchase
Notice.........................................................26
SECTION 3.11. Deposit of Purchase Price or Change in Control Purchase
Price..........................................................27
SECTION 3.12. Securities Purchased in Part...................................27
SECTION 3.13. Covenant to Comply with Securities Laws upon Purchase of
Securities.....................................................27
SECTION 3.14. Repayment to the Company.......................................28
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities..........................................28
SECTION 4.02. SEC and Other Reports..........................................29
SECTION 4.03. Compliance Certificate.........................................29
SECTION 4.04. Further Instruments and Acts...................................29
SECTION 4.05. Maintenance of Office or Agency................................29
SECTION 4.06. Delivery of Certain Information................................30
SECTION 4.07. Tax Treatment of Securities....................................30
SECTION 4.08. Liquidated Damages.............................................31
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge or Transfer Assets..................31
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..............................................32
SECTION 6.02. Defaults and Remedies..........................................33
SECTION 6.03. Other Remedies.................................................34
SECTION 6.04. Waiver of Past Defaults........................................34
SECTION 6.05. Control by Majority............................................35
SECTION 6.06. Limitation on Suits............................................35
SECTION 6.07. Rights of Holders to Receive Payment...........................35
SECTION 6.08. Collection Suit by Trustee.....................................36
SECTION 6.09. Trustee May File Proofs of Claim...............................36
SECTION 6.10. Priorities.....................................................37
SECTION 6.11. Undertaking for Costs..........................................37
SECTION 6.12. Waiver of Stay, Extension or Usury Laws........................37
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ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee..............................................38
SECTION 7.02. Rights of Trustee..............................................39
SECTION 7.03. Individual Rights of Trustee...................................41
SECTION 7.04. Trustee's Disclaimer...........................................41
SECTION 7.05. Notice of Defaults.............................................41
SECTION 7.06. Reports by Trustee to Holders..................................41
SECTION 7.07. Compensation and Indemnity.....................................42
SECTION 7.08. Replacement of Trustee.........................................42
SECTION 7.09. Successor Trustee by Merger....................................43
SECTION 7.10. Eligibility; Disqualification..................................43
SECTION 7.11. Preferential Collection of Claims Against Company..............44
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities...........................44
SECTION 8.02. Repayment to the Company.......................................44
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.....................................44
SECTION 9.02. With Consent of Holders........................................45
SECTION 9.03. Compliance with Trust Indenture Act............................46
SECTION 9.04. Revocation and Effect of Consents..............................46
SECTION 9.05. Notation on or Exchange of Securities..........................47
SECTION 9.06. Trustee to Sign Supplemental Indentures........................47
SECTION 9.07. Effect of Supplemental Indentures..............................47
ARTICLE X
CONVERSIONS
SECTION 10.01. Conversion Privilege...........................................47
SECTION 10.02. Conversion Procedure...........................................50
SECTION 10.03. Adjustments Below Par Value....................................52
SECTION 10.04. Taxes on Conversion............................................52
SECTION 10.05. Company to Provide Stock.......................................52
SECTION 10.06. Adjustment of Conversion Price.................................54
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SECTION 10.07. No Adjustment..................................................58
SECTION 10.08. Equivalent Adjustments.........................................59
SECTION 10.09. Adjustment for Tax Purposes....................................59
SECTION 10.10. Notice of Adjustment...........................................59
SECTION 10.11. Notice of Certain Transactions.................................59
SECTION 10.12. Effect of Reclassification, Consolidation, Merger, Share
Exchange or Sale on Conversion Privilege.......................60
SECTION 10.13. Trustee's Disclaimer...........................................61
SECTION 10.14. Voluntary Reduction............................................61
SECTION 10.15. Simultaneous Adjustments.......................................61
ARTICLE XI
GUARANTEES
SECTION 11.01. Guarantees.....................................................62
SECTION 11.02. Limitation on Liability........................................65
SECTION 11.03. Execution and Delivery of Guarantees...........................65
SECTION 11.04. When a Guarantor May Merge, etc................................65
SECTION 11.05. No Waiver......................................................66
SECTION 11.06. Modification...................................................66
SECTION 11.07. Release of Guarantor...........................................66
SECTION 11.08. Execution of Supplemental Indentures for Future Guarantors.....67
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls...................................67
SECTION 12.02. Notices........................................................67
SECTION 12.03. Communication by Holders with Other Holders....................68
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.............68
SECTION 12.05. Statements Required in Certificate or Opinion..................69
SECTION 12.06. Separability Clause............................................70
SECTION 12.07. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar......................................................70
SECTION 12.08. Legal Holidays.................................................70
SECTION 12.09. Governing Law..................................................70
SECTION 12.10. No Recourse Against Others.....................................70
SECTION 12.11. Successors.....................................................70
SECTION 12.12. Multiple Originals.............................................71
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EXHIBITS
Exhibit A-1 - Form of Global Security
Exhibit A-2 - Form of Certificated Security
Exhibit B - Transfer Certificate
Exhibit C - Form of Supplemental Indenture
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INDENTURE dated as of August 8, 2003 between YELLOW CORPORATION, a
Delaware corporation (the "Company"), certain of the Company's subsidiaries
signatory hereto (each a "Guarantor," collectively, the "Guarantors") and
Deutsche Bank Trust Company Americas, a New York banking corporation duly
organized and existing under the laws of the State of New York (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 5.0%
Contingent Convertible Senior Notes Due 2023 ("Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"144A Global Security" means a Global Security in the form of the
Security attached hereto as Exhibit A-1 that is deposited with and registered in
the name of the Depositary, representing Securities sold in reliance on Rule
144A under the Securities Act.
"Adjusted Net Assets" of a Guarantor at any date means the amount by
which the fair value of the assets and Property of such Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under its
Guarantee, of such Guarantor at such date.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"Control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "Controlling" and "Controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
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"Board Resolution" means a copy of one or more resolutions, certified
by an Officer of the Company to have been duly adopted or consented to by the
applicable Board of Directors and to be in full force and effect, and delivered
to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
City of New York is not a day on which banking institutions are authorized by
law or regulation to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-2.
"Common Stock" shall mean shares of the Company's Common Stock, $1.00
par value per share, as they exist on the date of this Indenture or any other
shares of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Order" means a written request or order signed in the name of
the Company by any two Officers and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any time the trust created by this Indenture shall be administered, which office
at the date hereof is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust and Agency Services, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Domestic Subsidiary" means a Subsidiary incorporated or otherwise
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory or possession of the United States.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
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"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.06 such
Securities will be in the form of a 144A Global Security.
"Guarantee" means an unconditional guaranty of the Notes given by any
Subsidiary pursuant to the provisions of Article 11 of this Indenture.
"Guarantor" means (i) Yellow Dot Com Subsidiary, Inc., Meridian IQ,
LLC, Yellow Global, LLC, Xxxxx.xxx Lines, Inc., MegaSys, Inc., Yellow
Transportation, Inc., Mission Supply Co., Yellow Technologies, Inc., Yellow
Redevelopment Corp., and Yellow Relocation Services, Inc., (ii) each Subsidiary
that executes and delivers a Guarantee pursuant to Section 11.08 hereof and
(iii) each Subsidiary that otherwise executes and delivers a Guarantee, in each
case, until such time as such Subsidiary is released from its Guarantee in
accordance with the provisions of this Indenture.
"Holder" or "Securityholder" means a person in whose name a Security
is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Initial Purchasers" shall mean Deutsche Bank Securities Inc., Banc
One Capital Markets, Inc., Fleet Securities, Inc. and SunTrust Capital Markets,
Inc.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement dated as of August 8, 2003 among the Company, the Guarantors
party thereto and the Initial Purchasers.
"Obligations" means, with respect to any indebtedness, any obligation
thereunder, including, without limitation, principal, premium and interest
(including post-petition interest thereon), penalties, fees, cost, expenses,
indemnifications, reimbursements, damages and other liabilities.
"Officer" means the Vice Chairman and Chief Executive Officer, any
Executive Vice President, any Senior Vice President, any Vice President, the
Chief Financial Officer, the Treasurer, the Secretary or any Assistant Secretary
of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 12.04 and 12.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be
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signed by the Treasurer or Chief Financial Officer of the Company but need not
contain the information specified in Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion containing the
information specified in Section 12.04 and 12.05, from legal counsel who is
acceptable to the Trustee in its reasonable discretion. The counsel may be an
employee of, or counsel to, the Company or the Trustee.
"Person" or "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or other entity.
"Principal Amount" or "principal amount" of a Security means the
Principal Amount as set forth on the face of the Security.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of the Securities in accordance with the terms of the Securities
and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 5 of the Securities.
"Responsible Officer" means, when used with respect to the Trustee,
any managing director, director, vice president, assistant vice president,
assistant treasurer, assistant secretary, associate or any other officer within
the corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge and familiarity
with the particular subject.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1
and A-2 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Security" or "Securities" means any of the Company's 5.0% Contingent
Convertible Senior Notes Due 2023, as amended or supplemented from time to time,
issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Securityholder" or "Holder" means a person in whose name a Security
is registered on the Registrar's books.
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"Significant Subsidiary" has the meaning ascribed to such term in
Regulation S-X (17 CFR Part 210).
"Stated Maturity" when used with respect to any Security, means the
date specified in such Security as the fixed date on which an amount equal to
the Principal Amount of such Security is due and payable.
"Subsidiary" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the National Association of Securities Dealers Automated Quotation
System or, if the Common Stock is not quoted on the National Association of
Securities Dealers Automated Quotation System, on the principal other market on
which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" of a person means Capital Stock of such person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.02. Other Definitions.
Term Defined in Section
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95% Trading Condition...................................... 10.01(c)
Act........................................................ 1.05(a)
Agent Members.............................................. 2.12(e)(v)
Aggregate Market Premium................................... 10.06(d)
Beneficial owner........................................... 3.09(a)
Cash....................................................... 3.08(b)
Change in Control.......................................... 3.09(a)
Change in Control Purchase Date............................ 3.09(a)
Change in Control Purchase Notice.......................... 3.09(c)
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Term Defined in Section
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Change in Control Purchase Price........................... 3.09(a)
Closing Price.............................................. 10.06(e)
Common Stock Market Capitalization......................... 10.06(e)
Company Notice............................................. 3.08(c)
Company Notice Date........................................ 3.08(c)
Continuing Directors....................................... 3.09(a)
Conversion Agent........................................... 2.03
Conversion Date............................................ 10.02
Conversion Price........................................... 10.06
Conversion Shares.......................................... 10.01
Depositary................................................. 2.01(a)
DTC........................................................ 2.01(a)
Event of Default........................................... 6.01
Ex-Dividend Date........................................... 10.01
Group...................................................... 3.09(a)(i)
Legal Holiday.............................................. 12.08
Legend..................................................... 2.06(f)
Notice of Default.......................................... 6.01
Paying Agent............................................... 2.03
Pre-Dividend Sale Price.................................... 10.06(g)
Principal Value Conversion................................. 10.02
Principal Value Conversion Notice.......................... 10.02
Purchase Date.............................................. 3.08(a)
Purchase Notice............................................ 3.08(a)
Purchase Price............................................. 3.08(a)
QIBS....................................................... 2.01(a)
Quarter.................................................... 10.01(a)
Registrar.................................................. 2.03
Rule 144A Information...................................... 4.06
Security Trading Price..................................... 10.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by a TIA reference to another statute or defined by an SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer
the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's
authority.
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The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the register maintained by the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the forms set forth on
Exhibits A-1 and A-2, which are a part of this Indenture and incorporated by
reference herein. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage; provided that any such notation,
legend or endorsement required by usage is in a form acceptable to the Company.
The Company shall provide any such notations, legends or endorsements to the
Trustee in a Company Order. Each Security shall be dated the date of its
authentication.
(a) 144A Global Securities. Securities offered and sold to
qualified institutional buyers as defined in Rule 144A ("QIBS") in reliance
on Rule 144A shall be issued, initially in the form of a 144A Global
Security, which shall be deposited with the
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Trustee at its Corporate Trust Office, as custodian for the Depositary and
registered in the name of The Depository Trust Company ("DTC") or the
nominee thereof (such depositary, or any successor thereto, and any such
nominee being hereinafter referred to as the "Depositary"), duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of the 144A Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. Each Global Security shall
represent such of the outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
written instructions given by the Holder thereof as required by Section 2.12
hereof and shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(c), authenticate and
deliver initially one or more Global Securities that (a) shall be
registered in the name of the Depositary, (b) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions and
(c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), 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. TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF
THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
-10-
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Certificated Securities. Securities not issued as interests
in the Global Securities will be issued in certificated form substantially
in the form of Exhibit A-2 attached hereto.
SECTION 2.02. Execution and Authentication. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
of the Company on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities the proper Officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of a Responsible Officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount of up to $250,000,000 (which shall
include the Initial Purchasers' option to purchase $50,000,000 of additional
Securities) upon a Company Order without any further action by the Company. The
aggregate Principal Amount of Securities outstanding at any time may not exceed
the amount set forth in the foregoing sentence, except as provided in Section
2.07.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of Principal Amount and any integral
multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05.
-11-
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (other than the
Trustee). The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee by a Company Order of
the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.07.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent to Hold Money in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any
Security, the Company shall deposit with the Paying Agent a sum of money (in
immediately available funds if deposited on the due date) sufficient to make
such payments when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any Default by the Company in making any such payment. At
any time during the continuance of any such Default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on July 15 and January 15 a listing of Securityholders dated within
15 days of the date on which the list is furnished and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Transfer and Exchange. (a) Subject to Section 2.12
hereof, upon surrender for registration of transfer of any Securities, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder's attorney duly authorized
in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate Principal Amount. The Company shall not
charge a service charge for any registration of transfer or
-12-
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder's attorney duly authorized
in writing, at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Security remains outstanding and is held by or on behalf
of the Depositary, transfers of a Global Security, in whole or in part,
shall be made only in accordance with Section 2.12 and this Section
2.06(b). Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, or in part, to nominees of the Depositary or
to a successor of the Depositary or such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities
upon transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Securities during any periods designated in the
text of the Securities or in this Indenture as periods during which such
registration of transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing
the legends set forth on the forms of Securities attached hereto as
Exhibits A-1 and A-2 setting forth such restrictions (collectively, the
"Legend"), or if a request is made to remove the Legend on a Security, the
Secu-
-13-
rities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the
Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar,
that neither the Legend nor the restrictions on transfer set forth therein
are required to ensure that transfers thereof comply with the provisions of
Rule 144A or Rule 144 under the Securities Act or that such Securities are
not "restricted" within the meaning of Rule 144 under the Securities Act.
Upon (i) provision of such satisfactory evidence, or (ii) notification by
the Company to the Trustee and registrar of the sale of such Security
pursuant to a registration statement that is effective at the time of such
sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend. If the
Legend is removed from the face of a Security and the Security is
subsequently held by an Affiliate of the Company, the Legend shall be
reinstated.
SECTION 2.07. Replacement Securities. If any mutilated Security is
surrendered to the Trustee, or the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and there
is delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
knowledge by the Company or the Trustee that such Security has been acquired by
a protected purchaser (within the meaning of Section 8-303 of the Uniform
Commercial Code), the Company shall execute, and upon the Company's written
request the Trustee shall authenticate and deliver, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
new Security of like tenor and Principal Amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article III hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 2.08. Outstanding Securities; Determinations of Holders'
Action. Securities outstanding at any time are all the Securities authenticated
by the Trustee, except for those cancelled by it, those paid pursuant to Section
2.07 delivered to it for cancellation and those described in this Section 2.08
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite Principal Amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of which a Responsible Officer of the Trustee has actual knowledge to
be so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles VI and IX).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change in
Control Purchase Date, or on Stated Maturity, money sufficient to pay amounts
owed with respect to Securities payable on that date, then immediately after
such Redemption Date, Purchase Date, Change in Control Purchase Date or Stated
Maturity, as the case may be, such Securities shall cease to be outstanding and
interest, if any (including contingent interest, if any), and Liquidated
Damages, if any, on such Securities shall cease to accrue; provided that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
If a Security is converted in accordance with Article X, then from and
after the time of conversion on the Conversion Date, such Security shall cease
to be outstanding and interest, if any (including contingent interest, if any),
shall cease to accrue on such Security.
SECTION 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the tem-
-15-
porary Securities shall be exchangeable for definitive Securities upon surrender
of the temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 2.03, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount of definitive Securities of authorized
denominations. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.10. Cancellation. All Securities surrendered for payment or
purchase by the Company pursuant to Article III, conversion, redemption or
registration of transfer or exchange (other than Securities exchanged pursuant
to Section 10.02), shall, if surrendered to any person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article X. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with the Trustee's customary procedure.
SECTION 2.11. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
the Principal Amount of the Security or the payment of any Redemption Price,
Purchase Price or Change in Control Purchase Price in respect thereof, and
accrued and unpaid interest thereon, for the purpose of conversion and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 2.12. Global Securities. (a) A Global Security may not be
transferred, in whole or in part, to any Person other than the Depositary or a
nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer
of a Security that is issued in exchange for a Global Security but is not itself
a Global Security. No transfer of a Security to any Person shall be effective
under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Notwithstanding any other provisions of
this Indenture or the Securities, transfers of a Global Security, in whole or in
part, shall be made only in accordance with Section 2.06 and this Section 2.12.
(b) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend including
the delivery of an Opinion of Counsel, if so provided. Whenever any
Restricted Security is presented or surren-
-16-
dered for registration of transfer or for exchange for a Security
registered in a name other than that of the Holder, such Security must be
accompanied by a certificate in substantially the form set forth in Exhibit
B, dated the date of such surrender and signed by the Holder of such
Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer
or exchange any Security not so accompanied by a properly completed
certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such
Security has been sold pursuant to an effective registration statement
under the Securities Act or transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto) or, if earlier,
upon the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision). Any
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender
of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in
compliance with Rule 144 or any successor provision, by an Opinion of
Counsel having substantial experience in practice under the Securities Act
and otherwise reasonably acceptable to the Company, addressed to the
Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate Principal Amount, which shall not bear the Legend. The Company
shall inform the Trustee of the effective date of any registration
statement registering the Securities under the Securities Act. The Trustee
shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the aforementioned Opinion of Counsel or
registration statement.
(d) As used in the preceding two paragraphs of this Section
2.12, the term "transfer" encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.
(e) The provisions of clauses (i), (ii), (iii) and (iv) below
shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof; provided that a Global Security
may be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (x) the Depositary has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days, (y) the Company
has provided the Depositary with written notice that it has decided to
discon-
-17-
tinue use of the system of book-entry transfer through the Depositary or
any successor Depositary or (z) an Event of Default has occurred and is
continuing with respect to the Securities. Any Global Security exchanged
pursuant to clause (x) or (y) above shall be so exchanged in whole and not
in part, and any Global Security exchanged pursuant to clause (z) above may
be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any such Security
so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Security.
(ii) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate Principal Amount equal to
that of such Global Security or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends provided
for herein. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the Principal Amount thereof shall be reduced, by an amount equal
to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered
Holder may grant proxies and otherwise authorize any Person, including
Agent Members (as defined below) and persons that may hold interests
through Agent Members, to take any action which a holder is entitled to
take under this Indenture or the Securities.
(iv) In the event of the occurrence of any of the events specified
in clause (i) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form, without interest coupons.
(v) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security registered in the name of the Depositary or
any nominee thereof, or under any such Global Security, and the Depositary
or such nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
and holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization
-18-
furnished by the Depositary or such nominee, as the case may be, or impair,
as between the Depositary, its Agent Members and any other person on whose
behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any
Security.
SECTION 2.13. CUSIP Numbers. The Company may issue the Securities with
one or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION AND PURCHASES
SECTION 3.01. Right To Redeem; Notices To Trustee. (a) Optional
Redemption. The Company, at its option, may redeem the Securities in accordance
with the provisions of paragraphs 5 and 7 of the Securities and at the
Redemption Price specified in paragraph 5 of the Securities, together with
accrued and unpaid interest (including contingent interest, if any) and
Liquidated Damages, if any, thereon up to but not including the Redemption Date;
provided that if the Redemption Date is on or after an interest record date, but
on or prior to the related interest payment date, interest will be payable to
the Holders in whose names the Securities are registered at the close of
business on the relevant record date for payment of such interest.
(b) Notice to Trustee. If the Company elects to redeem
Securities pursuant to this Section 3.01, it shall notify the Trustee in
writing of the Redemption Date, the Principal Amount of Securities to be
redeemed and the Redemption Price. The Company shall give the notice to the
Trustee provided for in this Section 3.01(b) by a Company Order at least 45
days before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee).
SECTION 3.02. Selection of Securities to Be Redeemed. If less than all
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed on a
pro rata basis. The Trustee may select for redemption portions of the Principal
Amount of Securities that have denominations of $1,000 and integral multiples
thereof.
Securities and portions of them the Trustee selects shall be in
Principal Amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities, in integral multiples of $1,000, called
-19-
for redemption. The Trustee shall notify the Company promptly of the Securities,
or portions of Securities, in integral multiples of $1,000 to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as possible) to be the portion selected for redemption. Securities that have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Conversion Price;
(d) the name and address of the Paying Agent and Conversion Agent;
(e) that Securities called for redemption may be converted at any
time before the close of business on the second Business Day immediately
preceding the Redemption Date;
(f) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 8 of the Securities;
(g) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price therefor, together with all
accrued and unpaid interest;
(h) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers, if any, and Principal Amounts of the particular
Securities to be redeemed;
(i) that, unless the Company defaults in making payment of such
Redemption Price, interest, if any (including contingent interest, if any),
and Liquidated Damages, if any, on Securities called for redemption will
cease to accrue on and after the Redemption Date and the Securities will
cease to be convertible; and
(j) the CUSIP number of the Securities.
-20-
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided that the
Company makes such request prior to the date by which such notice of redemption
must be given to Holders in accordance with this Section 3.03 and the Company
provides the Trustee with all information required for such notice of
redemption.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice, except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice, together with accrued and unpaid
interest, if any (including contingent interest, if any), and Liquidated
Damages, if any, thereon, up to but not including the Redemption Date.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. (New
York City time) on the Redemption Date the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) an amount of money in
immediately available funds sufficient to pay the Redemption Price of all
Securities to be redeemed on that date, together with accrued and unpaid
interest, if any (including contingent interest, if any), and Liquidated
Damages, if any, thereon, up to but not including the Redemption Date other than
Securities or portions of Securities called for redemption that on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article X. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder, without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate Principal Amount equal to, and in exchange for, the
unredeemed portion of the Principal Amount of the Security surrendered.
SECTION 3.07. Reserved.
SECTION 3.08. Purchase of Securities at Option of the Holder. (a)
General. Securities shall be purchased by the Company in accordance with the
provisions of paragraph 6 of the Securities on August 8, 2010, August 8, 2013
and August 8, 2018 (each, a "Purchase Date") at a purchase price per Security
equal to 100% of the aggregate Principal Amount of the Security (the "Purchase
Price"), together with accrued and unpaid interest (including contingent
interest, if any) and Liquidated Damages, if any, thereon, up to but not
including the Purchase Date; provided that if the Purchase Date is on or after
an interest record date but on or prior to the related interest payment date,
interest and Liquidated Damages, if any, will be payable to the
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Holders in whose names the Securities are registered at the close of business on
the relevant record date.
Purchases of Securities hereunder shall be made, at the option of the
Holder thereof, upon:
(i) delivery to the Company and the Paying Agent by the Holder of a
written notice of purchase (a "Purchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to the
Purchase Date until the close of business on the Business Day prior to such
Purchase Date stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased;
(B) the portion of the Principal Amount of the Security which
the Holder will deliver to be purchased, which portion must be in
principal amounts at maturity of $1,000 or an integral multiple
thereof;
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of
the Securities and in this Indenture; and
(ii) delivery of such Security to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Purchase Price therefor, together with accrued and unpaid
interest, if any (including contingent interest, if any), and Liquidated
Damages, if any; provided, however, that such Purchase Price, together with
accrued and unpaid interest, if any (including contingent interest, if
any), and Liquidated Damages, if any, shall be so paid pursuant to this
Section 3.08 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Purchase
Notice, as determined by the Company in its sole discretion.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.08(a)
shall have the right to
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withdraw such Purchase Notice at any time prior to the close of business on the
Business Day prior to the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent at the principal office of the Paying Agent in
accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(b) Manner of Payment of Purchase Price. The Purchase Price of
Securities in respect of which a Purchase Notice pursuant to Section 3.08
has been given shall be paid in U.S. legal tender ("Cash").
(c) Company Notice. In connection with any purchase of
Securities pursuant to Section 3.08, the Company shall give written notice
of the Purchase Date to the Holders (the "Company Notice"). The Company
Notice shall be sent by first-class mail to the Trustee and to each Holder
not less than 30 Business Days prior to any Purchase Date (the "Company
Notice Date"). Each Company Notice shall include a form of Purchase Notice
to be completed by a Securityholder and shall state:
(i) the Purchase Price and the Conversion Price;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Securities as to which a Purchase Notice has been given
may be converted if they are otherwise convertible only in accordance with
Article X hereof and paragraph 8 of the Securities if the applicable
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;
(iv) that Securities must be surrendered to the Paying Agent to
collect payment;
(v) that the Purchase Price for, and any accrued and unpaid
interest (including contingent interest, if any) and Liquidated Damages, if
any, on any Security as to which a Purchase Notice has been given and not
withdrawn will be paid promptly following the later of the Purchase Date
and the time of surrender of such Security as described in subclause (iv)
above;
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice (as specified
in Section 3.10);
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(ix) that, unless the Company defaults in making payment on
Securities for which a Purchase Notice has been submitted, interest, if any
(including contingent interest), and Liquidated Damages, if any, on such
Securities will cease to accrue on the Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in the
Company's name and at the Company's expense; provided, however, that the Company
makes such request at least three (3) Business Days prior to the date by which
such Company Notice must be given to the Holders and that, in all cases, the
text of such Company Notice shall be prepared by the Company.
SECTION 3.09. Purchase of Securities at Option of the Holder upon
Change in Control. (a) If at any time that Securities remain outstanding there
shall have occurred a Change in Control (as hereinafter defined), Securities
shall be repurchased by the Company, at the option of the Holder thereof, at a
purchase price (the "Change in Control Purchase Price") equal to the principal
amount thereof plus accrued and unpaid interest, if any (including contingent
interest, if any), and Liquidated Damages, if any, thereon, up to and including
the date (the "Change in Control Purchase Date") fixed by the Company that is
not less than 45 days nor more than 60 days after the date notice is given (as
set forth in 3.09(b)), subject to satisfaction by or on behalf of the Holder of
the requirements set forth in Section 3.09(c).
Whenever in this Indenture there is a reference to the principal of
any Security as of any time, such reference shall be deemed to include reference
to the Change in Control Purchase Price payable in respect of such Security to
the extent that such Change in Control Purchase Price is, was or would be
payable at such time, and express mention of the Change in Control Purchase
Price in any provision of this Indenture shall not be construed as excluding the
Change in Control Purchase Price in those provisions of this Indenture when such
express mention is not made.
A "Change in Control" shall be deemed to have occurred at such time
after the original issuance of the Securities as any of the following occur:
(i) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the
assets of the Company and its subsidiaries, taken as a whole, to any person
or group of related persons, as defined in Section 13(d) of the Exchange
Act (a "Group") (whether or not otherwise in compliance with the provisions
of this Indenture);
(ii) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company
(whether or not otherwise in compliance with the provisions of this
Indenture);
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(iii) any person or Group shall become the beneficial owner of shares
representing more than 50% of the aggregate ordinary voting power
represented by the Company's issued and outstanding Voting Stock; or
(iv) the first day of which a majority of the members of the
Company's Board of Directors are not Continuing Directors (as hereinafter
defined).
"Beneficial Owner" shall be determined in accordance with Rule 13d-3
and Rule 13d-5 promulgated by the SEC under the Exchange Act or any successor
provision, except that a Person shall be deemed to have "beneficial ownership"
of all securities that such Person has the right to acquire, whether exercisable
immediately or only after the passage of time.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the original issuance of the Securities or
(ii) was nominated for election or elected to the Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election.
(b) Within 30 days after the occurrence of a Change in Control,
the Company shall mail a written notice of the Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The notice shall include a form of
Change in Control Purchase Notice to be completed by the Securityholder and
shall state:
(i) briefly, the events causing a Change in Control and the date of
such Change in Control;
(ii) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.09 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price;
(v) the name and address of the Paying Agent and the Conversion
Agent;
(vi) the Conversion Price and any adjustments thereto;
(vii) that Securities as to which a Change in Control Purchase Notice
has been given may be converted pursuant to Article X hereof only if the
Change in Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(viii) that Securities must be surrendered to the Paying Agent to
collect payment;
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(ix) that the Change in Control Purchase Price for any Security as
to which a Change in Control Purchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Change in
Control Purchase Date and the time of surrender of such Security as
described in clause (viii);
(x) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.09;
(xi) briefly, the conversion rights of the Securities;
(xii) the procedures for withdrawing a Change in Control Purchase
Notice (as specified in Section 3.10);
(xiii) that, unless the Company defaults in making payment of such
Change in Control Purchase Price, interest (including contingent interest,
if any) and Liquidated Damages, if any, on Securities surrendered for
purchase by the Company will cease to accrue on and after the Change in
Control Purchase Date; and
(xiv) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section
3.09(a) upon delivery of a written notice of purchase (a "Change in Control
Purchase Notice"), together with the Securities subject thereto, to the
Company and the Paying Agent at any time prior to the close of business on
the third Business Day prior to the Change in Control Purchase Date,
stating:
(i) the certificate number of the Security that the Holder will
deliver to be purchased;
(ii) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(iii) that such Security shall be purchased pursuant to the terms and
conditions specified in paragraph 6 of the Securities.
The delivery of such Security to the Paying Agent prior to, on or
after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.09 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral mul-
-26-
tiple of $1,000. Provisions of this Indenture that apply to the purchase of all
of a Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 3.09(c) shall have the right to withdraw such Change in Control Purchase
Notice at any time prior to the close of business on the Business Day preceding
the Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Purchase Notice or written withdrawal thereof.
Notwithstanding anything herein to the contrary, the Company's
obligations pursuant to this Section 3.09 shall be satisfied if a third party
makes a Change in Control offer in the manner and at the times and otherwise in
compliance in all material respects with the requirements of this Section 3.09
and purchases all Securities properly tendered and not withdrawn pursuant to the
requirements of this Section 3.09.
SECTION 3.10. Effect of Purchase Notice or Change in Control Purchase
Notice. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08 or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price, together with all accrued and unpaid interest
(including contingent interest, if any) and Liquidated Damages, if any, thereon,
to but not including the Purchase Date or Change in Control Purchase Price, as
the case may be, with respect to such Security. Such Purchase Price, together
with accrued and unpaid interest, if any (including contingent interest, if
any), and Liquidated Damages, if any, thereon, to but not including the Purchase
Date or Change in Control Purchase Price, as the case may be, shall be paid to
such Holder, subject to receipt of funds and/or securities by the Paying Agent,
promptly following the later of (x) the Purchase Date or the Change in Control
Purchase Date, as the case may be, with respect to such Security (provided that
the conditions in Section 3.08 or Section 3.09(c), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.08 or Section 3.09(c), as
applicable. Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice, as the case may be, has been given by the Holder
thereof may not be converted pursuant to Article X hereof on or after the date
of the delivery of such Purchase Notice or Change in Control Purchase Notice, as
the case may be, unless
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such Purchase Notice or Change in Control Purchase Notice, as the case may be,
has first been validly withdrawn as specified in the following paragraph.
A Purchase Notice or Change in Control Purchase Notice, as the case
may be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Purchase Notice or Change
in Control Purchase Notice, as the case may be, at any time prior to the close
of business on the Business Day prior to the Purchase Date or prior to the close
of business on the Change in Control Purchase Date, as the case may be,
specifying:
(i) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(ii) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(iii) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
SECTION 3.11. Deposit of Purchase Price or Change in Control Purchase
Price. Prior to 10:00 a.m. (New York City time) on the Business Day prior to the
Purchase Date or the Change in Control Purchase Date, as the case may be, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Purchase Price, together with all accrued
and unpaid interest (including contingent interest, if any) and Liquidated
Damages, if any, thereon, to but not including the Purchase Date or Change in
Control Purchase Price, as the case may be, of all the Securities or portions
thereof which are to be purchased as of the Purchase Date or Change in Control
Purchase Date, as the case may be.
SECTION 3.12. Securities Purchased in Part. Any Certificated Security
that is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate Principal Amount equal to, and in exchange for, the
portion of the Principal Amount of the Security so surrendered which is not
purchased.
SECTION 3.13. Covenant to Comply with Securities Laws upon Purchase of
Securities. When complying with the provisions of Section 3.08 or 3.09 hereof
(provided that
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such offer or purchase 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 purchase), the Company shall
(i) comply in all material respects with Rule 13e-4 and Rule 14e-1 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 in all material
respects with all Federal and state securities laws so as to permit the rights
and obligations under Section 3.08 or 3.09 to be exercised in the time and in
the manner specified in Section 3.08 or 3.09.
SECTION 3.14. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed as provided in
paragraph 11 of the Securities, together with interest or dividends, if any,
thereon (subject to the provisions of Section 7.01(f)), held by them for the
payment of the Purchase Price or Change in Control Purchase Price, as the case
may be, and accrued and unpaid interest, if any (including contingent interest,
if any), and Liquidated Damages, if any; provided, however, that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section
3.11 exceeds the aggregate Purchase Price or Change in Control Purchase Price,
as the case may be, of the Securities or portions thereof which the Company is
obligated to purchase as of the Purchase Date or Change in Control Purchase
Date, as the case may be, and accrued and unpaid interest thereon, if any
(including contingent interest, if any), and Liquidated Damages, if any then,
unless otherwise agreed in writing with the Company, promptly after the Business
Day following the Purchase Date or Change in Control Purchase Date, as the case
may be, the Trustee shall return any such excess to the Company together with
interest or dividends, if any, thereon (subject to the provisions of Section
7.01(f)).
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent, as the case may be, shall be deposited
with the Trustee or Paying Agent, as the case may be, in immediately available
funds by 10:00 a.m. (New York City time) by the Company. Interest installments,
Liquidated Damages, Principal Amount, Redemption Price, Purchase Price, Change
in Control Purchase Price and interest, if any, due on overdue amounts shall be
considered paid on the applicable date due if at 10:00 a.m. (New York City time)
on such date (or, in the case of a Purchase Price or Change in Control Purchase
Price, on the Business Day following the applicable Purchase Date or Change in
Control Purchase Date, as the case may be) the Trustee or the Paying Agent, as
the case may be, holds, in accordance with this Indenture, money sufficient to
pay all such amounts then due.
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The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the rate per annum set forth in paragraph 1 of the
Securities, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in addition to the continued accrual of interest on the
Securities.
SECTION 4.02. SEC and Other Reports. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided to the Trustee at
the times the Company would have been required to provide reports had it
continued to have been subject to such reporting requirements. Delivery of such
reports, information and documents is for informational purposes only and the
Trustee's receipt of such shall not constitute notice or constructive notice of
any information contained therein or determinable from information contained
therein.
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ended December 31, 2003) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such Defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Corporate Trust Office of the Trustee
shall initially be such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location, and of
any change in the location, of any
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such office or agency (other than a change in the location of the office of the
Trustee). If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes.
SECTION 4.06. Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of Common Stock delivered upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial owner of Securities or holder or
beneficial owner of Common Stock, or to a prospective purchaser of any such
security designated by any such holder, as the case may be, to the extent
required to permit compliance by such Holder or holder with Rule 144A under the
Securities Act in connection with the resale of any such security. "Rule 144A
Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act or any successor provisions. Whether a
person is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
SECTION 4.07. Tax Treatment of Securities. The Company and the
Holders, by purchasing the Securities, agree that (i) the Securities will be
treated as indebtedness for United States federal income tax purposes that is
subject to the Treasury Regulations governing contingent payment debt
instruments, (ii) each Holder shall be bound by the Company's application of
the contingent payment debt regulations to the Securities, including the 9.0%
rate at which interest will be deemed to accrue on the Securities for United
States federal income tax purposes, (iii) each Holder shall use the projected
payment schedule with respect to the Securities, which a Holder may obtain by
submitting a written request to the Company, to determine such Holder's interest
accruals and adjustments, and (iv) the Company and each Holder will not take any
position on a tax return inconsistent with (i), (ii), or (iii), unless required
by applicable law.
Holders will be required to accrue interest based on the rate at which
the Company would issue a fixed rate nonconvertible debt instrument with no
contingent payments, but with terms and conditions otherwise comparable to those
of the Securities, which has been determined to be 9.0%. Accordingly, Holders
will be required to include interest in taxable income in each year in excess of
any interest payments (whether fixed or contingent) actually received in that
year.
Upon a sale, purchase by the Company at the option of a Holder,
exchange, conversion or redemption of the Securities, a Holder will recognize
gain or loss equal to the differ-
-31-
ence between such Holder's amount realized and the adjusted tax basis in the
Securities held by such Holder. The amount realized by a Holder will include, in
the case of a conversion, the fair market value of the Common Stock received by
such Holder. Any gain on a sale, purchase by the Company at the option of a
Holder, exchange, conversion or redemption of the Securities will be treated as
ordinary interest income.
SECTION 4.08. Liquidated Damages. If at any time Liquidated Damages
become payable by the Company pursuant to the Registration Rights Agreement, the
Company shall promptly deliver to the Trustee an Officers' Certificate to that
effect and stating (i) the amount of such Liquidated Damages that are payable
and (ii) the date on which such damages are payable pursuant to the terms of the
Registration Rights Agreement. Unless and until a Responsible Officer of the
Trustee receives such Officers' Certificate, the Trustee may assume without
inquiry that no Liquidated Damages are payable. If the Company has paid
Liquidated Damages directly to the persons entitled to them, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into any other person or
convey, transfer or lease all or substantially all of its properties and assets
to any person, unless:
(i) (1) the Company shall be the resulting or surviving
corporation or (2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety (i) shall be a corporation organized
and validly existing under the laws of the United States or any State
thereof or the District of Columbia, and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of the Company
under the Securities, this Indenture and the Registration Rights Agreement;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an Officers'
Certificate and, with respect to matters of law, an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article V and
that all conditions precedent herein provided for relating to such
transaction have been satisfied in all material respects.
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For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company would constitute all or substantially all of the properties
and assets of the Company shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture pursuant to Section 10.12, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor person shall enter into
a supplemental indenture (with endorsements of Guarantees thereon by the
Guarantors) to evidence the succession and substitution of such successor person
and such discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. Subject to the provisions set forth
below in this Section 6.01, an "Event of Default" occurs if:
(a) the Company defaults in the payment of interest, if any
(including contingent interest, if any), and Liquidated Damages, if any,
payable on any Security when the same becomes due and payable and such
default continues for a period of 30 days;
(b) the Company defaults in the payment of the Principal Amount,
Redemption Price, Purchase Price or Change in Control Purchase Price on any
Security when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or
otherwise;
(c) the Company fails to comply with any of its agreements in the
Securities or this Indenture and such failure continues for 45 days;
(d) the Company fails to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the stated principal
amount of any of the Company's or its Subsidiaries indebtedness, or the
acceleration of the final stated maturity of any such indebtedness (which
acceleration is not rescinded, annulled or otherwise cured within 20 days
of receipt by the Company or such Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such indebtedness,
together with the principal amount of any other such indebtedness in
default for failure to pay principal at final
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stated maturity or which has been accelerated (in each case with respect to
which the 20-day period described above has elapsed), aggregates
$20,000,000 or more at any time;
(e) the Company or a Significant Subsidiary of the Company fails to
pay when due any final, non-appealable judgments (other than any judgment
as to which a reputable insurance company has accepted full liability)
aggregating in excess of $20,000,000, which judgments are not stayed,
bonded or discharged within 60 days after their entry;
(f) the Company fails to issue Common Stock upon conversion of
Securities by a Holder in accordance with the provisions of this Indenture;
(g) any Guarantee by a Guarantor that is a Significant Subsidiary
shall for any reason cease to be, or be asserted by the Company or such
Guarantor, as applicable, not to be, in full force and effect (except
pursuant to the release of any such Guarantee in accordance with the
provisions of this Indenture);
(h) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or any Significant Subsidiary
of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its
property or ordering the winding up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 45
days; or
(i) the Company or any Significant Subsidiary of the Company shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or such Subsidiary of the Company or for any substantial part of
its property or make any general assignment for the benefit of creditors.
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under clause (c) or (d) above, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Defaults and Remedies. If an Event of Default (other
than an Event of Default specified in Section 6.01(h) or 6.01(i) with respect to
the Company) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in aggregate Principal Amount of the Securities at
the time outstanding by notice to the Company and the Trustee, may declare the
Principal Amount of all the Securities plus accrued and unpaid interest, if any
(including contingent interest, if any), and Liquidated Damages, if any,
thereon, through
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the date of declaration to be immediately due and payable. Upon such a
declaration, such Principal Amount plus accrued and unpaid interest, if any
(including contingent interest, if any), and Liquidated Damages, if any, shall
become and be immediately due and payable subject to the provisions of Article
XI. If an Event of Default specified in Section 6.01(h) or 6.01(i), solely with
respect to the Company, occurs and is continuing, the Principal Amount of all
the Securities plus accrued and unpaid interest, if any (including contingent
interest, if any), and Liquidated Damages, if any, thereon, shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholder.
The Holders of a majority in principal amount of the Securities then
outstanding by notice to the Trustee may rescind an acceleration and its
consequences if (a) all existing Events of Default, other than the nonpayment of
the principal of and accrued and unpaid interest, if any (including contingent
interest, if any), and Liquidated Damages, if any, on the Securities which has
become due solely by such declaration of acceleration, have been cured or
waived; (b) the Company has paid or deposited with the Trustee a sum in
immediately available funds sufficient to pay (i) all overdue interest
(including contingent interest, if any) and Liquidated Damages, if any, on the
Securities, (ii) the principal of any Security which has become due otherwise
then by such declaration of acceleration, and (iii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
Liquidated Damages, if any, and overdue principal, which has become due
otherwise than by such declaration of acceleration; (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and
(d) all payments due to the Trustee and any predecessor Trustee under Section
7.07 have been made. No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereon.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Principal Amount of all the Securities plus all accrued and unpaid
interest (including contingent interest, if any) and Liquidated Damages, if any,
thereon or to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
in writing to the Trustee (and without notice to any other Securityholder), may
waive an existing Default and its consequences, except (a) an Event of Default
described in Section 6.01(a) or 6.01(b), (b) a Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
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Securityholder affected or (c) a Default which constitutes a failure to convert
any Security in accordance with the terms of Article X. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right. This Section 6.04 shall be in lieu
of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.05 shall be in lieu of Section 316(a)1(A) of the TIA and such
Section 316(a)1(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(b) the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(e) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Subject to the
provisions of Article XI hereof, notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of interest installments
(including contingent interest, if any), Liquidated Damages, if any, the
Principal Amount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, due on overdue amounts in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, and to convert
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the Securities in accordance with Article X, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(a), 6.01(b) or 6.01(g) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, any Guarantor or any other obligor upon the
Securities or the property of the Company, any Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether interest
installments (including contingent interest, if any), Liquidated Damages, if
any, the Principal Amount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, due on overdue amounts in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company or the Guarantors for the payment of any such amount) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for any accrued and unpaid interest
installments (including contingent interest, if any), Liquidated Damages,
if any, the whole amount of the Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, due
on overdue amounts in respect of the Securities, and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
or any other amounts due the Trustee under Section 7.07) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement,
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adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for any accrued and unpaid interest installments (including
contingent interest, if any), the Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, due
on overdue amounts in respect of the Securities, as the case may be,
ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company or the Guarantors or to
such other party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate Principal Amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.12. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of any interest installment
(including contingent interest, if any), Liquidated Damages, if any, the
Principal Amount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, due on overdue amounts in respect of the securities,
as contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may
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lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee shall not be liable except for the performance of
those duties that are specifically set forth in this Indenture and no
others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture, but in
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein.
This Section 7.01(b) shall be in lieu of Section 3.15(a) of the TIA
and such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
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Sections 7.01(c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315 (d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315 (d) (3) are hereby expressly excluded from this Indenture, as permitted by
the TIA.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to Sections 7.01(a), (b), (c) and (e).
(e) The Trustee may refuse to perform any duty or exercise any
right or power or expend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee (acting in any capacity hereunder) shall be under no liability for
interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.
SECTION 7.02. Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may obtain and, in the
absence of bad faith or negligence on its part, conclusively rely upon an
Officers' Certificate and/or an Opinion of Counsel;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(d) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith which it reasonably believes to
be authorized or within its rights or powers conferred under this
Indenture;
(e) the Trustee may consult with counsel selected by it and any
advice or opinion of such counsel shall be full and complete authorization
and protection in respect
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of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion of such counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Order and any resolution of the Board
of Directors be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, during normal business hours and after reasonable prior
notice to the Company, to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder;
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded; and
(l) neither the Trustee nor any of its officers, directors, employees
or agents shall be liable for any action taken or omitted under this
Indenture or in connection
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therewith except to the extent caused by the Trustee's gross negligence,
bad faith or willful misconduct, as determined by the final judgment of a
court of competent jurisdiction, no longer subject to appeal or review.
Anything in this Indenture to the contrary notwithstanding, in no event
shall the Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but no limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in any registration statement for the Securities under the Securities Act or in
any offering document for the Securities, the Indenture or the Securities (other
than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default occurs and if it is
actually known to a Responsible Officer or the Trustee, the Trustee shall give
to each Securityholder notice of all current Defaults known to it within 90 days
after any such Default occurs or, if later, within 15 days after it is actually
known to a Responsible Officer or the Trustee, unless such Default shall have
been cured or waived before the giving of such notice. Notwithstanding the
preceding sentence, except in the case of a Default described in Sections
6.01(a) and 6.01(b), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders. The second sentence of this
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and
such proviso is hereby expressly excluded from this Indenture, as permitted by
the TIA.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee promptly in
writing whenever the securities become listed on any securities exchange and of
any delisting thereof.
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SECTION 7.07. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited (to the extent permitted by law)
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or any documents executed
in connection herewith (including the reasonable compensation and the
expenses, advances and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents, officers, directors and employees for, and to hold them harmless
against, any loss, damage, claim, liability, cost or expense (including
attorneys' fees and expenses and taxes (other than taxes based upon,
measured by or determined by the income of the Trustee)) incurred without
negligence, misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay interest
installments (including contingent interest, if any), Liquidated Damages, if
any, the Principal Amount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, due on overdue amounts, as the case may be,
in respect of any particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture or the earlier termination or
resignation of the Trustee. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(e) or Section 6.01(f), the
expenses, including the reasonable charges and expenses of its counsel, are
intended to constitute expenses of administration under any bankruptcy law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, that no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company shall remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee gives its notice of resignation or is removed, the retiring
Trustee, the Company or the Holders of a majority in aggregate Principal Amount
of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including the administration of the trust
created by this Indenture) to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1). The Trustee (or its
parent holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the SEC the application referred to in the penultimate paragraph of TIA Section
310(b). The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Com-
-44-
pany are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee Cash, in immediately available funds, sufficient to pay all amounts
due and owing on all outstanding Securities (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
7.07, cease to be of further effect. The Trustee shall join in the execution of
a document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand at the cost and expense of the Company and accompanied
by an Officers' Certificate and Opinion of Counsel.
SECTION 8.02. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money held by them
for the payment of any amount with respect to the Securities that remains
unclaimed for two years, subject to applicable unclaimed property law. After
return to the Company, as applicable, Holders entitled to the money must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Securityholders with respect to such
money or securities for that period commencing after the return thereof.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
together may amend or supplement this Indenture or the Securities without notice
to or consent of any Securityholder or Guarantor:
(a) to comply with Article V or Section 10.12;
(b) to cure any ambiguity, omission, defect or inconsistency;
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(c) to make provisions with respect to the conversion right of the
Holders pursuant to the requirements of Section 10.12 and Section 10.01;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities;
(e) to reduce the Conversion Price;
(f) to make any changes that would provide the holders of Securities
with any additional rights or benefits;
(g) to make any change that does not adversely affect the rights of
any Holder;
(h) to effectuate the release of a Guarantor provided that such
release is otherwise in accordance with this Indenture; and
(i) to comply with the provisions of the TIA, or with any requirement
of the SEC arising as a result of the qualification of this Indenture under
the TIA.
SECTION 9.02. With Consent of Holders. The Company, the Guarantors and
the Trustee may amend or supplement this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate Principal Amount of the Securities then outstanding. The
Holders of a majority in aggregate Principal Amount of the Securities then
outstanding may waive compliance by the Company with restrictive provisions of
this Indenture other than as set forth in this Section 9.02 below, and waive any
past Default under this Indenture and its consequences, except a Default in the
payment of the principal of or interest on any Security or in respect of a
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Security affected.
Subject to Section 9.04, without the written consent of each
Securityholder affected, however, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.04, may not:
(a) change the Stated Maturity of the principal of, or any payment
date of any installment of interest (including contingent interest, if any)
or Liquidated Damages, if any, on, any Security;
(b) reduce the principal amount of, or the rate of interest
(including contingent interest, if any) or Liquidated Damages, if any, on,
any Security, whether upon acceleration, redemption or otherwise, or alter
the manner of calculation of interest or Liquidated Damages, if any, or the
rate of accrual thereof on any Security;
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(c) change the currency for payment of principal of, or interest
(including contingent interest, if any) or Liquidated Damages, if any, on
any Security;
(d) impair the right to institute suit for the enforcement of any
payment of principal of, or interest (including contingent interest, if
any) or Liquidated Damages, if any, on, any Security when due;
(e) adversely affect the conversion rights provided in Article X;
(f) modify the ranking of the Securities in a manner adverse to the
rights of the Holders of the Securities;
(g) after the Company's obligation to purchase the Securities arises
hereunder, amend, change or modify in any material respect in a manner
adverse to the Holders of the Securities the obligation of the Company to
make and consummate a Change in Control offer in the event of a Change in
Control or, after such Change in Control has occurred, modify any of the
provisions of this Indenture with respect thereto;
(h) reduce the percentage of principal amount of the outstanding
Securities necessary to modify or amend this Indenture or to consent to any
waiver provided for in this Indenture;
(i) waive a Default in the payment of the principal amount of, or
interest (including contingent interest, if any) or Liquidated Damages, if
any, on, any Security (except as provided in Section 6.02); or
(j) make any changes in Section 6.04, Section 6.07 or this paragraph.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Failure to mail the notice or a defect in the notice shall not effect the
validity of the amendment.
SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article IX shall comply with the TIA.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a
Holder of a Security hereunder is a continuing consent by the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same obligation as the consenting Holder's Security, even if notation of the
consent, waiver or action is not made on the Security. However, any such
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Holder or subsequent Holder may revoke the consent, waiver or action as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment, waiver or action becomes effective.
After an amendment, waiver or action becomes effective, it shall bind every
Securityholder.
SECTION 9.05. Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article IX if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.01) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture, and, solely with respect to such Officer's Certificate stating that
all conditions precedent to the execution of such amendment have been met.
SECTION 9.07. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes, and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE X
CONVERSIONS
SECTION 10.01. Conversion Privilege. Subject to the provisions of this
Article X, a Holder of a Security may convert such Security into Common Stock
(the shares of Common Stock issuable upon such conversion, the "Conversion
Shares"), at the Conversion Price then in effect, together with those rights,
warrants or options specified in Section 10.06(f) hereof, to the extent
applicable, if any of the following conditions is satisfied:
(a) during any calendar quarter (the "Quarter") commencing after
September 30, 2003, if the Closing Price (as defined hereinafter) per share
of Common Stock for at least 20 Trading Days in the period of 30
consecutive Trading Days ending on the last Trading Day of the Quarter
preceding the Quarter in which the conversion of such Security occurs is
more than 120% of the Conversion Price on such thirtieth Trading Day;
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(b) the Security has been called for redemption by the Company
pursuant to Section 3.01;
(c) the conversion of such Security would occur during the five
Trading Day period immediately following a period of ten consecutive
Trading Days in which the Security Trading Price (as determined following a
request by a Holder of the Securities in accordance with the procedures set
forth below in this Section 10.01) for each Trading Day in such period was
less than 95% of the product of the Closing Price per share of Common Stock
on such Trading Day multiplied by the number of shares of Common Stock
issuable (assuming satisfaction of conditions to conversion) upon
conversion of $1,000 in principal amount of the Securities (the condition
specified in this clause (c) being the "95% Trading Condition");
(d) during any period that the credit rating assigned to the
Securities is lower than B2 by Moody's or lower than B by Standard and
Poor's or the Notes are no longer rated by at least one of these rating
services or their successors;
(e) (i) an issuance of rights, warrants or options referred to in
Section 10.06(b) occurs or (ii) a distribution referred to in Section
10.06(c) occurs where the fair market value of such distribution per share
of Common Stock (as determined by the Board of Directors of the Company,
which determination shall be conclusive evidence of such fair market value)
exceeds 5% of the Closing Price per share of Common Stock on the Trading
Day immediately preceding the date of declaration of such distribution; or
(f) (x) the Company is party to a consolidation, merger, share
exchange, sale of all or substantially all of its assets or other similar
transaction pursuant to which the Common Stock is subject to conversion
into shares of stock, other securities or property (including cash)
pursuant to Section 10.12 and (y) the conversion of such Security occurs at
any time from and after the date that is 15 days prior to the date of the
anticipated effective time of such transaction until and including the date
that is 15 days after the actual effective date of such transaction.
In connection with the foregoing clause (a), at the end of each
Quarter the Conversion Agent shall, on the Company's behalf, determine whether
the Securities are convertible in the subsequent Quarter pursuant to such Clause
(a), and promptly notify the Holders if the Securities are convertible.
In the case of the foregoing clauses (e)(i) and (ii), the Company must
notify the Holders at least 20 days prior to the ex-dividend date for such
issuance or distribution. Once the Company has given such notice, Holders may
surrender their Securities for conversion at any time thereafter until the
earlier of the close of business on the Business Day prior to the ex-dividend
date or the Company's announcement that such issuance or distribution will not
take place. This provision shall not apply if the Holder of a Security otherwise
participates in the distribution without conversion.
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The "Ex-Dividend Date" for any such issuance or distribution means the
date immediately prior to the commencement of "ex-dividend" trading for such
issuance or distribution on The NASDAQ Stock Market or similar system of
automated dissemination of quotations of securities prices on which the Common
Stock is then listed or quoted.
The number of shares of Common Stock issuable upon conversion of a
Security shall be determined by dividing the principal amount of the Security or
portion thereof surrendered for conversion by the Conversion Price in effect on
the Conversion Date. The initial Conversion Price is set forth in paragraph 8 of
the Securities and is subject to adjustment as provided in this Article X.
A Holder may convert the principal amount of a Security equal to
$1,000 or any integral multiple thereof. Provisions of this Indenture that apply
to conversion of all of a Security also apply to conversion of $1,000 principal
amount or multiples thereof of less than all of a Security.
If a Security is called for redemption pursuant to Article III, the
right to convert such Security shall terminate at the close of business on the
second Business Day before the Redemption Date for such Security (unless the
Company shall default in making the redemption payment then due, in which case
the conversion right shall terminate on the date such Default is cured and such
Security is redeemed). A Security in respect of which a Holder has delivered a
Purchase Notice pursuant to Section 3.08 or a Change in Control Purchase Notice
pursuant to Section 3.09 exercising the option of such Holder to require the
Company to repurchase such Security may be converted only if such Purchase
Notice or Change in Control Purchase Notice, as the case may be, is withdrawn by
a written notice of withdrawal delivered to the Paying Agent prior to the close
of business on the Business Day prior to the Purchase Date or prior to the close
of business on the Change in Control Purchase Date, as the case may be, in
accordance with Section 3.10.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock
and, upon such conversion, only to the extent such Securities are deemed to have
been converted into Common Stock pursuant to this Article X.
The "Security Trading Price" per $1,000 in principal amount of
Securities on any date of determination means the average of the secondary
market bid quotations per $1,000 in principal amount of Securities obtained by
the Conversion Agent for $5,000,000 in principal amount of Securities at
approximately 3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers selected by the
Company; provided that if at least three such bids cannot reasonably be obtained
by the Conversion Agent, but two such bids are obtained, then the average of the
two bids shall be used, and if only one such bid can reasonably be obtained by
the Conversion Agent, such one bid shall be used. If the Conversion Agent cannot
reasonably obtain at least one bid for $5,000,000 in principal amount of
Securities from a nationally recognized securities dealer or, in the reasonable
judgment of the
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Company, the bid quotations are not indicative of the secondary market value of
the Securities, then the Security Trading Price will be determined in good faith
by the calculation agent (which shall initially be the Trustee unless the
Trustee shall have appointed a calculation agent, which may be any investment
bank with a national or international reputation with experience in such
matters, including an Initial Purchaser or its successors) taking into account
in such determination such factors as it, in its sole discretion after
consultation with the Company, deems appropriate. Other than in connection with
a determination of whether contingent interest shall be payable, the Conversion
Agent shall have no obligation to determine the Security Trading Price unless
the Company has requested such determination; and the Company shall have no
obligation to make such request unless a Holder of the Securities provides the
Company with reasonable evidence that the Security Trading Price would be less
than 95% of the product of the Closing Price per share of the Common Stock and
the number of shares of Common Stock issuable upon conversion of $1,000 in
principal amount of Securities (assuming satisfaction of conditions to such
conversion); at which time the Company shall instruct the Conversion Agent to
determine the Security Trading Price beginning on the next Trading Day and on
each successive Trading Day until the Security Trading Price is greater than or
equal to 95% of the product of the Closing Price per share of Common Stock and
the number of shares of Common Stock issuable upon conversion of $1,000 in
principal amount of Securities (assuming satisfaction of conditions to such
conversion).
SECTION 10.02. Conversion Procedure. To convert a Security, a Holder
must satisfy the requirements in paragraph 8 of the Securities and (i) complete
and manually sign the conversion notice on the back of the Security and deliver
such notice to the Conversion Agent, (ii) surrender the Security to the
Conversion Agent, (iii) furnish appropriate endorsements and transfer documents
if required by the Registrar or the Conversion Agent, (iv) pay any transfer or
other tax, if required by Section 10.04 and (v) if the Security is held in
book-entry form, complete and deliver to the Depositary appropriate instructions
pursuant to the Depositary's book-entry conversion programs. The date on which
the Holder satisfies all of the foregoing requirements is the "Conversion Date".
As soon as practicable after the Conversion Date, the Company shall deliver to
the Holder through the Conversion Agent either (i) a certificate for or (ii) a
book-entry notation of the number of whole shares of Common Stock issuable upon
the conversion and cash in lieu of any fractional shares pursuant to Section
10.05; provided, however, that in the event of a Principal Value Conversion
referred to below in this Section 10.02, the Company shall deliver to the Holder
through the Conversion Agent such cash and/or Common Stock as shall be specified
in the Principal Value Conversion Notice pertaining to such Principal Value
Conversion.
The person in whose name the certificate is registered shall be deemed
to be a stockholder of record on the Conversion Date; provided, however, that no
surrender of a Security on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the person or persons entitled
to receive the shares of Common Stock upon such conversion as the record holder
or holders of such shares of Common Stock on such date, but such surrender shall
be effective to constitute the person or persons entitled to receive such shares
of
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Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided, further, that such conversion shall be at the Conversion
Price in effect on the date that such Security shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed.
Upon conversion of a Security, such person shall no longer be a Holder of such
Security.
No payment or adjustment will be made for accrued interest, if any
(including contingent interest, if any), or Liquidated Damages, if any, on a
converted Security or for dividends or distributions on shares of Common Stock
issued upon conversion of a Security (provided that the shares of Common Stock
received upon conversion of Securities shall continue to accrue Liquidated
Damages, as applicable, in accordance with the Registration Rights Agreement and
shall be entitled to receive, at the next interest payment date, any accrued and
unpaid Liquidated Damages with respect to the converted Securities), but if any
Holder surrenders a Security for conversion between the record date for the
payment of an installment of interest and the next interest payment date, then,
notwithstanding such conversion, the interest (including contingent interest, if
any) or Liquidated Damages, if any, payable on such interest payment date shall
be paid to the Holder of such Security on such record date. In such event, such
Security, when surrendered for conversion, must be accompanied by delivery of a
check payable to the Conversion Agent in an amount equal to the interest
(including contingent interest, if any) or Liquidated Damages, if any, payable
on such interest payment date on the portion so converted. If such payment does
not accompany such Security, the Security shall not be converted; provided,
however, that no such check shall be required if such Security has been called
for redemption on a Redemption Date within the period between and including such
record date and such interest payment date, or if such Security is surrendered
for conversion on the interest payment date. If the Company defaults in the
payment of interest (including contingent interest, if any) or Liquidated
Damages, if any, payable on the interest payment date, the Conversion Agent
shall repay such funds to the Holder.
If a Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be based on
the aggregate principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security equal in principal amount to the unconverted portion of the
Security surrendered.
If on the Trading Day immediately prior to the date of conversion of a
Security pursuant to the 95% Trading Condition the Closing Price per share of
Common Stock is greater than the Conversion Price, the Company may elect to pay
to the Holder of such Security, in lieu of issuance of Conversion Shares based
on the Conversion Price, cash or Common Stock or a combination of cash and
Common Stock, at the Company's option, with a value equal to the principal
amount of the Security surrendered for conversion as of such Conversion Date (a
"Principal Value Conversion"). The Company shall notify the surrendering Holder
of any Secu-
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rity whose conversion is a Principal Value Conversion and the Trustee (such
notice being a "Principal Value Conversion Notice") of such Principal Value
Conversion by the second Trading Day following the Conversion Date for such
conversion whether the Company shall pay to such Holder all or a portion of the
principal amount of such Security in cash, Common Stock or a combination of cash
and Common Stock and, if a combination, the percentages of the principal amount
in respect of which it will pay in cash or Common Stock. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid upon a Principal Value Conversion
once the Company has given its Principal Value Conversion Notice to the Holder
surrendering such Security whose conversion is a Principal Value Conversion. Any
Common Stock to be delivered upon a Principal Value Conversion shall be valued
at the greater of (x) the Conversion Price on the Conversion Date for such
conversion and (y) the Closing Price per share of Common Stock on the third
Trading Day after such Conversion Date. The Company shall pay any portion of the
principal amount to be paid in cash in a Principal Value Conversion on the third
Trading Day after the Conversion Date for such conversion. With respect to any
portion of the principal amount to be paid in Common Stock in a Principal Value
Conversion, the Company shall deliver the Common Stock to the Holder of the
Security surrendered for conversion in such Principal Value Conversion on the
fourth Trading Day following the Conversion Date for such conversion.
SECTION 10.03. Adjustments Below Par Value. Before taking any action
which would cause an adjustment decreasing the Conversion Price so that the
shares of Common Stock issuable upon conversion of the Securities would be
issued for less than the par value of such Common Stock, the Company will take
all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Conversion Price.
SECTION 10.04. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon such conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulations.
SECTION 10.05. Company to Provide Stock. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve, out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of all outstanding Securities
for shares of Common Stock. The shares of Common Stock or other securities
issued upon conversion of Securities bearing a Legend as provided in Section
2.06(f) shall bear a legend substantially in the following form:
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"THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (III)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO IN (A) ABOVE."
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. If any fractional share of Common Stock would be issuable upon
the conversion of any Security or Securities, the Company shall make an
adjustment thereof in cash at the current market value thereof. For these
purposes, the current market value of a share of Common Stock shall be the
Closing Price per share of Common Stock on the first Business Day immediately
preceding the day on which the Securities (or specified portions thereof) are
deemed to have been converted.
The Company covenants that all shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free of any lien or adverse claim.
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The Company will endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to be
approved for listing or included for quotation, as the case may be, such shares
of Common Stock on each national securities exchange or in the over-the-counter
market or such other market on which the Common Stock is then listed or quoted.
SECTION 10.06. Adjustment of Conversion Price. The conversion price
(the "Conversion Price") shall be that price set forth in paragraph 8 of the
form of Security attached hereto as Exhibit A and shall be adjusted from time to
time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other
distribution in shares of Common Stock or other Capital Stock to all
holders of Common Stock, (ii) subdivide its outstanding Common Stock into a
greater number of shares, (iii) combine its outstanding Common Stock into a
smaller number of shares or (iv) reclassify its outstanding Common Stock,
the Conversion Price in effect immediately prior thereto shall be adjusted
so that the Holder of any Security thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock which it
would have owned or have been entitled to receive had such Security been
converted immediately (whether or not it was then convertible) prior to the
happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision, combination or reclassification.
(b) In case the Company shall issue to all holders of its Common
Stock, rights, warrants or options entitling such holders (for a period
commencing no earlier than the record date described below and expiring not
more than 60 days after such record date) to subscribe for or purchase
shares of Common Stock (or securities convertible into Common Stock) at a
price per share less than the current market price per share of Common
Stock (as determined in accordance with subsection (e) below) at the record
date for the determination of stockholders entitled to receive such rights,
warrants or options, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Conversion Price shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on such record date, plus
the number of shares which the aggregate subscription or purchase price for
the total number of shares of Common Stock offered by the rights, warrants
or options so issued (or the aggregate conversion price of the convertible
securities offered by such rights, warrants or options) would purchase at
such current market price, and the denominator of which shall be the number
of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered by such rights, warrants or
options (or into which the convertible securities so offered by such
rights, warrants or options are convertible). Such adjustment shall be made
successively whenever any such rights, warrants or options are issued, and
shall become effective immediately after such
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record date. If at the end of the period during which such rights, warrants
or options are exercisable not all rights, warrants or options shall have
been exercised, the adjusted Conversion Price shall be immediately
readjusted to what it would have been upon application of the foregoing
adjustment substituting the number of additional shares of Common Stock
actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued) for the total number
of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all holders of its
Common Stock any shares of Capital Stock of the Company (other than Common
Stock) or evidences of its indebtedness, other securities or other assets,
or shall distribute to all holders of its Common Stock, rights, warrants or
options to subscribe for or purchase any of its securities (excluding (i)
rights, options and warrants referred to in Section 10.06(b) above; (ii)
those dividends, distributions, subdivisions and combinations referred to
in Section 10.06(a) above; and (iii) dividends and distributions paid in
cash), then in each such case 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 date of such
distribution by a fraction, the numerator of which shall be the current
market price per share (as defined in Section 10.06(e) below) of the Common
Stock on the record date mentioned below less the fair market value on such
record date (as determined by the Board of Directors of the Company, whose
determination shall be conclusive evidence of such fair market value) of
the portion of the Capital Stock or evidences of indebtedness, securities
or assets so distributed or of such rights, warrants or options, in each
case as applicable, to one share of Common Stock, and the denominator of
which shall be the current market price per share (as defined in Section
10.06(e) below) of the Common Stock on such record date; provided that if
the numerator of the foregoing fraction is less than $1.00 (including a
negative amount), then in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive
upon conversion, in addition to the Common Stock issuable upon such
conversion, the distribution such Holder would have received had such
Holder converted its Security immediately prior to the record date for such
distribution. Such adjustment shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
distribution.
(d) In case the Company or any of its Subsidiaries shall repurchase
(including by way of tender offer) shares of Common Stock, and the fair
market value of the sum of (i) the aggregate consideration paid for such
Common Stock and (ii) the aggregate fair market value of any amounts
previously paid for the repurchase of Common Stock of a type described in
this paragraph (d) within the 12 months preceding the date of purchase of
such shares of Common Stock in respect of which no adjustment pursuant to
this Section 10.06 previously has been made, exceeds 5% of Common Stock
Market Capitalization on the date of, and after giving effect to, such
repurchase, then the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the
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Conversion Price in effect immediately prior to the date of such purchase
by a fraction, the numerator of which shall be the current market price per
share (as defined in Section 10.06(e) below) of the Common Stock on the
date of such repurchase, less the quotient obtained by dividing the
Aggregate Market Premium involved in such repurchase (as defined
hereinafter) by the difference between the number of shares of Common Stock
outstanding before such repurchase and the number of shares of Common Stock
the subject of such repurchase, and the denominator of which shall be the
current market price per share (as defined in Section 10.06(e) below) of
the Common Stock on the date of such repurchase. Such adjustment shall
become effective immediately after the date of such repurchase. For
purposes of this subsection (d), the "Aggregate Market Premium" is the
excess, if any, of the aggregate repurchase price paid for all such Common
Stock over the aggregate current market value per share (as defined in
subsection (e) below) of all such repurchased stock, determined with
respect to each share involved in each such repurchase as of the date of
repurchase with respect to such share.
(e) In case someone other than the Company or one of its Subsidiaries
makes a payment in respect of a tender offer or exchange offer for shares
of Common Stock in which, as of the closing date of the offer, the
Company's Board of Directors is not recommending rejection of the offer,
the Conversion Price will be adjusted as provided in subsection (d) above.
The adjustment referred to in this clause will only be made if:
(i) the tender offer or exchange offer is for an amount that
increases the offeror's ownership of common stock to more than 50% of
the aggregate ordinary voting power represented by the Company's
issued and outstanding Voting Stock; and
(ii) cash and the value of any other consideration included in
the payment per share of Common Stock exceeds the current market price
per share of Common Stock on the Business Day next succeeding the last
date on which tenders or exchanges may be made pursuant to the tender
or exchange offer.
However, the adjustment referred to in this subsection (e) will not be made
if as of the closing of the offer, the offering documents disclose a plan
or an intention to cause the Company to engage in a consolidation or merger
of the Company or a sale of all or substantially all of the Company's
assets.
For the purpose of any computation under Sections 10.06(b), (c) and
(d) above and this Section 10.06(e), the current market price per share of
Common Stock on any date shall be deemed to be the average of the Closing
Prices per share of Common Stock for 20 consecutive Trading Days commencing
30 Trading Days before the record date with respect to any distribution,
issuance or other event requiring such computation. The "Closing Price"
with respect to the Common Stock for any day shall mean the closing sale
price, regular way, per share of Common Stock on such day or, in case no
such sale of Common Stock takes place on such day, the average of the
reported closing bid and
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asked prices, regular way, per share of Common Stock in each case on the
NASDAQ Stock Market or principal national securities exchange or other
quotation system on which the Common Stock is quoted or listed or admitted
to trading on such day, or, if the Common Stock is not so quoted or listed
or admitted to trading on any national securities exchange or quotation
system, the average of the closing bid and asked prices per share of Common
Stock on the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if such average is not so available, determined in
such manner as furnished by any NASDAQ Stock Market member firm selected
from time to time by the Board of Directors for that purpose, or if not so
determinable as provided under any applicable alternative above, a price
per share of Common Stock determined in good faith by the Board of
Directors or, to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive. "Common Stock
Market Capitalization" means, as of any date of calculation, the average
Closing Price of the Common Stock on the 10 Trading Days immediately prior
to such date of calculation multiplied by the average aggregate number of
shares of Common Stock outstanding on the 10 Trading Days immediately prior
to such date of calculation.
(f) To the extent that the Company adopts any future rights plan,
upon conversion of the Securities into Common Stock, Securityholders will
receive, in addition to Common Stock, the rights under the future rights
plan whether or not the rights have separated from the Common Stock at the
time of conversion and no adjustment to the Conversion Price will be made
in accordance with paragraph (c).
(g) In case the Company shall declare a cash dividend or distribution
to all of the holders of Common Stock, the Conversion Price shall be
decreased so that the Conversion Price shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the record
date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the Closing
Prices of the Common Stock price for the three consecutive trading
days ending on the date immediately preceding the record date for such
dividend or distribution (the "Pre-Dividend Sale Price"), minus the
full amount of such cash dividend or distribution applicable to one
share of Common Stock, and
(ii) the denominator of which shall be the Pre-Dividend Sale
Price,
such adjustment to become effective immediately after the record date
for such dividend or distribution; provided that no adjustment to the
Conversion Price or the ability of a Holder of a Security to convert will
be made pursuant to this Section 10.06(g) if the Company provides that
Holders of Securities will participate in such cash dividend or
distribution on an as-converted basis without conversion and provided
further, that if the numerator of the foregoing fraction is less than $1.00
(including a negative amount), then in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder
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shall have the right to receive upon conversion, in addition to the Common
Stock issuable upon such conversion, the amount of cash such Holder would
have received had such Holder converted its Security immediately prior to
the record date for such dividend or distribution. If such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price that would then be in effect if such
dividend or distribution had not been declared.
In any case in which this Section 10.06 shall require that an
adjustment be made immediately following a record date established for purposes
of Section 10.06, the Company may elect to defer (but only until five Business
Days following the filing by the Company with the Trustee of the certificate
described in Section 10.06) issuing to the holder of any Security converted
after such record date the shares of Common Stock and other Capital Stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other Capital Stock of the Company issuable upon such conversion only on the
basis of the Conversion Price prior to adjustment; and, in lieu of the shares
the issuance of which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence of the right to
receive such shares.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Price shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article X with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article X.
SECTION 10.07. No Adjustment. No adjustment in the Conversion Price
shall be required unless the adjustment would require an increase or decrease of
at least 1% in the Conversion Price as last adjusted; provided, however, that
any adjustments which by reason of this Section 10.07 are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article X shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
No adjustment need be made for a transaction referred to in Section
10.06 if Holders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. Such participation by Holders may include participation upon
conversion; provided that an adjustment shall be made at such time as the
Holders are no longer entitled to participate.
No adjustment need be made for rights to purchase Common Stock or
issuances of Common Stock pursuant to a Company plan for reinvestment of
dividends or interest.
No adjustment need be made for a change in the par value or a change
to no par value of the Common Stock.
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To the extent that the Securities become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
SECTION 10.08. Equivalent Adjustments. In the event that, as a result
of an adjustment made pursuant to Section 10.06 above, the Holder of any
Security thereafter surrendered for conversion shall become entitled to receive
any shares of Capital Stock of the Company other than shares of its Common
Stock, thereafter the Conversion Price of such other shares so receivable upon
conversion of any Securities shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Article X.
SECTION 10.09. Adjustment for Tax Purposes. The Company shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by Section 10.06, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares, distribution
of rights to purchase stock or securities, or a distribution or securities
convertible into or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
SECTION 10.10. Notice of Adjustment. Whenever the Conversion Price is
adjusted, or Securityholders become entitled to other securities or due bills,
the Company shall promptly mail to Securityholders a notice of the adjustment
and file with the Trustee an Officers' Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. The certificate shall
be conclusive evidence of the correctness of such adjustment and the Trustee may
conclusively assume that, unless and until such certificate is received by it,
no such adjustment is required.
SECTION 10.11. Notice of Certain Transactions. In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock (other than in cash out of retained earnings); or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights, warrants or options to subscribe for or purchase
any share of any class or any other rights, warrants or options; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value), or of any consolidation, merger, or share exchange to
which the Company is a party and for which approval of any stockholders of
the Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
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the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder of Securities at its address appearing on the
list provided for in Section 2.05, as promptly as possible but in any event at
least ten days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights, warrants or options, 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 or rights 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 or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, share exchange, transfer,
dissolution, liquidation or winding-up.
SECTION 10.12. Effect of Reclassification, Consolidation, Merger,
Share Exchange or Sale on Conversion Privilege. If any of the following shall
occur, namely: (i) any reclassification or change of outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination); (ii) any consolidation, combination, merger or share exchange to
which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of Common Stock; or (iii) any sale or
conveyance of all or substantially all of the assets of the Company, then the
Company, or such successor or purchasing corporation, as the case may be, shall,
as a condition precedent to such reclassification, change, consolidation,
merger, share exchange, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of Capital Stock and other securities and property (including
cash) receivable upon such reclassification, change, consolidation, merger,
share exchange, sale or conveyance by a holder of the number of shares of Common
Stock deliverable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, share exchange, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article X. If, in
the case of any such consolidation, merger, share exchange, sale or conveyance,
the stock or other securities and property (including cash) receivable thereupon
by a holder of Common Stock includes shares of Capital Stock or other securities
and property of a corporation other than the successor or purchasing
corporation, as the case may be, in such consolidation, merger, share exchange,
sale or conveyance, then such supplemental indenture shall also be executed by
such other corporation and shall contain such additional provisions to protect
the interests of the Holders of the Securities as the Board of Directors of the
Company shall reasonably consider necessary by reason of the foregoing. The
provision of this
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Section 10.12 shall similarly apply to successive consolidations, mergers, share
exchanges, sales or conveyances. Notwithstanding the foregoing, a distribution
by the Company to all holders of its Common Stock for which an adjustment to the
Conversion Price or provision for conversion of the Securities may be made
pursuant to Section 10.06 shall not be deemed to be a sale or conveyance of all
or substantially all of the assets of the Company for purposes of this Section
10.12.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.12, the Company shall promptly file with the Trustee
an Opinion of Counsel stating that such supplemental indenture is authorized or
permitted by this Indenture and an Officers' Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities or
property (including cash) receivable by Holders of the Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, share exchange, sale or conveyance, any adjustment to be
made with respect thereto and that all conditions precedent have been complied
with.
SECTION 10.13. Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article X should be made, how it should
be made or what such adjustment should be made, but may accept as conclusive
evidence of the correctness of any such adjustment, and shall be protected in
relying upon, the Officers' Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 10.10. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the Company's failure to comply with any
provisions of this Article X. Each Conversion Agent (other than the Company or
an Affiliate of the Company) shall have the same protection under this Section
10.13 as the Trustee.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 10.12, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 10.12.
SECTION 10.14. Voluntary Reduction. 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 20 Trading Days or such longer period as may be required by law and
if the reduction is irrevocable during the period; provided that in no event may
the Conversion Price be less than the par value of a share of Common Stock.
SECTION 10.15. Simultaneous Adjustments. In the event that this
Article X requires adjustments to the Conversion Price under more than one of
Sections 10.06(c), (d) and (e), and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 10.06(d)
or (e), as applicable, and, second, the provisions of Section 10.06(c). If more
than one
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event requiring adjustment pursuant to Section 10.06 shall occur before
completing the determination of the Conversion Price for the first event
requiring such adjustment, then the Board of Directors (whose determination
shall, if made in good faith, be conclusive) shall make such adjustments to the
Conversion Price (and the calculation thereof) after giving effect to all such
events as shall preserve for Securityholders the Conversion Price protection
provided in Section 10.06.
ARTICLE XI
GUARANTEES
SECTION 11.01. Guarantees.
(a) For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Guarantors hereby
jointly and severally and irrevocably and unconditionally guarantees to the
Trustee and to each Holder of a Security authenticated and delivered by the
Trustee irrespective of the validity or enforceability of this Indenture or
the Securities or the Obligations of the Company and the Guarantors under
this Indenture, that: (i) the principal of, premium, if any, and any
interest, on the Securities (including, without limitation, contingent
interest and any interest that accrues after the filing of a proceeding of
the type described in Sections 6.01(e) and (f)), Liquidated Damages, if
any, on the Securities and any fees, expenses and other amounts owing under
this Indenture will be duly and punctually paid in full when due, whether
at Stated Maturity, by acceleration, call for redemption, upon a Purchase
Notice, a Change in Control Offer, purchase or otherwise, and interest on
the overdue principal and (to the extent permitted by law) interest, if
any, on the Securities and any other amounts due in respect of the
Securities, and all other Obligations of the Company and the Guarantors to
the Holders of the Securities under this Indenture and the Securities,
whether now or hereafter existing, will be promptly paid in full or
performed, all strictly in accordance with the terms hereof and of the
Securities; and (ii) in case of any extension of time of payment or renewal
of any Securities or any of such other Obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration, call
for redemption, upon a Purchase Notice, a Change in Control Offer, purchase
or otherwise. If payment is not made when due of any amount so guaranteed
for whatever reason, each Guarantor shall be jointly and severally
obligated to pay the same individually whether or not such failure to pay
has become an Event of Default which could cause acceleration pursuant to
Section 6.02. Each Guarantor agrees that this is a guarantee of payment and
not a guarantee of collection. An Event of Default under this Indenture or
the Securities shall constitute an Event of Default under this Guarantee,
and shall entitle the Holders to accelerate the Obligations of each
Guarantor hereunder in the same manner and to the same extent as the
Obligations of the Company. This Guarantee is intended to be superior to or
pari passu in right of payment with all indebtedness of the Guarantors and
each
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Guarantor's Obligations are independent of any Obligation of the Company or
any other Guarantor.
(b) Each Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations under this
Indenture or the Securities and also waives notice of protest for
nonpayment. Each Guarantor waives notice of any default under the
Securities or the Obligations. The Obligations of each Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any guarantee
thereof; (c) any rescission, waiver, amendment or modification of any of
the terms or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the
Trustee for the Obligations or any of them; (e) the failure of any Holder
or the Trustee to exercise any right or remedy against any other guarantor
of the Obligations; or (f) any change in the ownership of such Guarantor.
(c) The Obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations of the
Company or otherwise. Without limiting the generality of the foregoing, the
Obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any remedy under this Indenture, the
Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations of the Company, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Guarantor or would otherwise
operate as a discharge of such Guarantor as a matter of law or equity.
(d) Each Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of principal of, premium, if any, on
or interest (including contingent interest, if any), and Liquidated
Damages, if any, on any Obligation of the Company is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
(e) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Company to pay the
principal of, premium, if any, on or interest on any Obligation when and as
the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Obliga-
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tion, each Guarantor hereby promises to and will, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid amount
of such Obligations, (ii) accrued and unpaid interest on such Obligations
(but only to the extent not prohibited by law) and (iii) all other monetary
Obligations of the Company to the Holders and the Trustee.
(f) Until such time as the Securities and the other Obligations
of the Company guaranteed hereby have been satisfied in full, each
Guarantor hereby irrevocably waives any claim or other rights that it may
now or hereafter acquire against the Company or any other Guarantor that
arise from the existence, payment, performance or enforcement of such
Guarantor's Obligations under this Guarantee, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim
or remedy of the Holders or the Trustee against the Company or any other
Guarantor or any security, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company or any
other Guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such
claim, remedy or right. If any amount shall be paid to such Guarantor in
violation of the preceding sentence at any time prior to the later of the
payments in full of the Securities and all other amounts payable under this
Indenture, this Guarantee and the Stated Maturity of the Securities, such
amount shall be held in trust for the benefit of the Holders and the
Trustee and shall forthwith be paid to the Trustee to be credited and
applied to the Securities and all other amounts payable under this
Guarantee, whether matured or unmatured, in accordance with the terms of
this Indenture, or to be held as security for any Obligations or other
amounts payable under this Guarantee thereafter arising.
(g) Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 11.01 is knowingly
made in contemplation of such benefits. Each Guarantor further agrees that,
as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (x) subject to this Article 11, the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any acceleration of such
Obligations guaranteed hereby as provided in Article 6, such Obligations
(whether or not due and payable) shall further then become due and payable
by the Guarantors for the purposes of this Guarantee.
(h) A Guarantor that makes a distribution or payment under a
Guarantee shall be entitled to contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each such other
Guarantor for all payments, damages and expenses incurred by that Guarantor
in discharging the Company's obligations with respect to the Securities and
this Indenture or any other Guarantor with respect to its Guarantee, so
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long as the exercise of such right does not impair the rights of the
Holders of the Securities under the Guarantees.
(i) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 11.02. Limitation on Liability.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guaranteed
hereunder by any Guarantor shall not exceed the maximum amount that can be
hereby guaranteed without rendering this Indenture, as it relates to such
Guarantor, void, voidable or unenforceable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally. To effectuate the foregoing intention, the
Obligations of each Guarantor shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under its Guarantee or pursuant to its contribution Obligations
hereunder, result in the Obligations of such Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law or otherwise not being void, voidable or unenforceable under any
bankruptcy, reorganization, receivership, insolvency, liquidation or other
similar legislation or legal principles under any applicable foreign law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
SECTION 11.03. Execution and Delivery of Guarantees.
To further evidence its Guarantee set forth in Section 11.01 hereof,
each Guarantor hereby agrees that notation of such Guarantee shall be endorsed
on each Security authenticated and delivered by the Trustee and executed by
either manual or facsimile signature of an authorized officer of such Guarantor.
Each Guarantor hereby agrees that its Guarantee set forth in Section 11.01
hereof shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guarantee. If an officer of a
Guarantor whose signature is on this Indenture or a Security no longer holds
that office at the time the Trustee authenticates such Security or at any time
thereafter, such Guarantor's Guarantee of such Security shall be valid
nevertheless. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 11.04. When a Guarantor May Merge, etc.
No Guarantor shall consolidate with or merge with or into (whether or
not such Guarantor is the surviving person) another corporation, Person or
entity whether or not affiliated
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with such Guarantor (but excluding any consolidation, amalgamation or merger if
the surviving corporation is no longer a Subsidiary) unless (i) subject to the
provisions of Section 11.07 hereof, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
Obligations of such Guarantor pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee under the Securities and this Indenture
and (ii) immediately after giving effect to such transaction, no Default or
Event of Default exists. In connection with any such consolidation or merger,
the Trustee shall be entitled to receive an Officers' Certificate and an Opinion
of Counsel stating that such consolidation or merger is permitted by this
Section 11.04.
SECTION 11.05. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 11 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 11 at law, in equity, by
statute or otherwise.
SECTION 11.06. Modification.
No modification, amendment or waiver of any provision of this Article
11, nor the consent to any departure by any Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 11.07. Release of Guarantor.
Upon the sale or other transfer of all or substantially all of the
Capital Stock or all or substantially all of the assets of a Guarantor to any
Person that is not an Affiliate of the Company in compliance with the terms of
this Indenture (including, without limitation, Section 11.04 hereof) and in a
transaction that does not result in a Default or an Event of Default being in
existence or continuing immediately thereafter, such Guarantor shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Indenture without any further action required on the part of the
Trustee or any Holder. The Trustee shall deliver at the expense of the Company
an appropriate instrument or instruments evidencing such release upon receipt of
a request of the Company accompanied by an Officers' Certificate and Opinion of
Counsel certifying as to the compliance with this Section 11.07 and the other
applicable provisions of this Indenture.
-67-
SECTION 11.08. Execution of Supplemental Indentures for Future
Guarantors.
Any Domestic Subsidiary that guarantees any debt securities of the
Company (excluding bank credit facilities) is required to become a Guarantor
(but only so long as such other guarantees continue in effect) and the Company
shall cause each such Subsidiary to promptly execute and deliver to the Trustee
a supplemental indenture in the form of Exhibit C hereto pursuant to which such
Subsidiary shall become a Guarantor under this Article 11 and shall guarantee
the Obligations of the Company under the Securities and this Indenture.
Concurrently with the execution and delivery of such supplemental indenture, the
Company shall deliver to the Trustee an Opinion of Counsel to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, and subject to
other exceptions reasonably satisfactory to the Trustee, whether considered in a
proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, and as to any such other matters as the
Trustee may reasonably request.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows, or
transmitted by facsimile transmission (confirmed orally) to the following
facsimile numbers:
if to the Company, to:
00000 Xxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
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in either case, with a copy to:
Fulbright & Xxxxxxxx LLP
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
if to the Trustee, to:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Services
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Regis-
-69-
trar, the Paying Agent, the Conversion Agent and anyone else shall have the
protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such eligible and qualified Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable case should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating the
information on which counsel is relying unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(a) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
-70-
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 12.06. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.07. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest (including contingent interest, if any)
or Liquidated Damages, if any, shall accrue for the intervening period.
SECTION 12.09. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
-71-
SECTION 12.12. Multiple Originals. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
-72-
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
YELLOW CORPORATION
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
--------------------------------
Name:
Title:
YELLOW DOT COM SUBSIDIARY, INC.
MERIDIAN IQ, LLC
YELLOW GLOBAL, LLC
XXXXX.XXX LINES, INC.
MEGASYS, INC.
YELLOW TRANSPORTATION, INC.
MISSION SUPPLY CO.
YELLOW TECHNOLOGIES, INC.
YELLOW REDEVELOPMENT CORP.
YELLOW RELOCATION SERVICES, INC.
By:
--------------------------------
Name:
Title:
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS SECURITY IS SUBJECT TO THE
TREASURY REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS (THE
"CONTINGENT PAYMENT DEBT REGULATIONS"). UNDER THE CONTINGENT PAYMENT DEBT
REGULATIONS, EACH HOLDER OF THIS SECURITY, REGARDLESS OF ITS METHOD OF
ACCOUNTING FOR U.S. FEDERAL INCOME TAX PURPOSES, WILL BE REQUIRED TO ACCRUE
INTEREST INCOME ON THIS SECURITY ON A CONSTANT YIELD BASIS AT AN ASSUMED YIELD
OF 9.0% PER ANNUM (THE "COMPARABLE YIELD") DETERMINED AT THE TIME OF ISSUANCE.
THIS ACCRUED INTEREST INCOME WILL BE IN EXCESS OF THE REGULAR INTEREST PAYMENTS.
FOR PURPOSES OF DETERMINING THE AMOUNT AND TIMING OF INTEREST INCOME THAT A
HOLDER WILL BE REQUIRED TO ACCRUE, YELLOW CORPORATION (THE "COMPANY") HAS
CONSTRUCTED A "PROJECTED PAYMENT SCHEDULE". HOLDERS OF THIS SECURITY MAY OBTAIN
INFORMATION REGARDING THE COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE
FOR THIS SECURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO:
YELLOW CORPORATION, 00000 XXX XXXXXX, XXXXXXXX XXXX, XXXXXX 00000, ATTN.: CHIEF
FINANCIAL OFFICER, SUCH INFORMATION TO BE MADE AVAILABLE, BEGINNING NO LATER
THAN 10 DAYS AFTER THE ISSUE DATE, PROMPTLY UPON REQUEST.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY, AND THE COMMON STOCK
DELIVERABLE UPON CONVERSION HEREOF
A-1-1
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-1-2
YELLOW CORPORATION
5.0% Contingent Convertible Senior Notes due 2023
No.: A-1 CUSIP: 000000XX0
Issue Date: August 8, 2003 Principal Amount: $200,000,000
YELLOW CORPORATION, a Delaware corporation, promises to pay to Cede &
Co. or registered assigns, the Principal Amount as set forth on Schedule I
hereto, on August 8, 2023, subject 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. This Security is convertible
as specified on the other side of this Security.
Interest Payment Dates: August 8 and February 8, commencing February
8, 2004
Record Dates: July 15 and January 15
Dated:
YELLOW CORPORATION
By:
--------------------------------
Name:
Title:
A-1-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Deutsche Bank Trust Company Americas, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
By:
-------------------------
Authorized Signatory
Dated:
A-1-4
[FORM OF REVERSE SIDE OF NOTE]
YELLOW CORPORATION
5.0% Contingent Convertible Senior Notes Due 2023
1. Interest.
--------
This Security shall accrue interest at an initial rate of 5.0% per
annum. The Company promises to pay interest on the Securities in cash
semiannually on each August 8 and February 8, commencing February 8, 2004, to
Holders of record on the immediately preceding July 15 and January 15,
respectively, whether or not such day is a Business Day. Interest on the
Securities will accrue from the most recent date to which interest has been
paid, or if no interest has been paid, from August 8, 2003, until the Principal
Amount is paid or duly made available for payment. The Company will pay interest
on any overdue Principal Amount at the interest rate borne by the Securities at
the time such interest on the overdue Principal Amount accrues, compounded
semiannually, and it shall pay interest on overdue installments of interest and
Liquidated Damages, if any (without regard to any applicable grace period), at
the same interest rate compounded semiannually. Interest (including contingent
interest, if any) on the Securities will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Company shall pay contingent interest to the Holders during any
six-month period (a "Contingent Interest Period") from August 8 to February 7
and from February 8 to August 7, with the initial six-month period commencing
August 8, 2010, if the average Security Trading Price for the five Trading Day
period ending on the third Trading Day immediately preceding the first day of
the applicable Contingent Interest Period equals $1,200 or more. The amount of
contingent interest payable per $1,000 principal amount of Securities in respect
of any Contingent Interest Period shall equal the greater of (i) 0.5% per annum
of the principal amount of the Securities and (ii) 0.5% per annum of the average
Trading Price of the Securities for the five Trading Day period immediately
proceeding such six-month period. The Company will pay contingent interest, if
any, in the same manner as it will pay interest as described above.
2. Method of Payment.
-----------------
The Company will pay interest (including contingent interest, if any)
and Liquidated Damages, if any, on this Security (except defaulted interest) to
the Person who is the registered Holder of this Security at the close of
business on July 15 or January 15, as the case may be, next preceding the
related interest payment date. Subject to the terms and conditions of the
Indenture, the Company will make payments in respect of the Redemption Price,
Purchase Price, Change in Control Purchase Price and the Principal Amount at
Stated Maturity, as the case may be, to the Holder who surrenders a Security to
a Paying Agent to collect such payments in respect of the Security. The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may pay interest (including contingent interest, if any), Liquidated Damages, if
any, the Redemption Price, Purchase Price, Change in Control Purchase Price and
the Principal Amount at Stated Maturity, as the case may be, by check or wire
payable in such money; provided, however, that a Holder holding Securities with
an aggregate Principal Amount in excess of
A-1-5
$1,000,000 will be paid by wire transfer in immediately available funds at the
election of such Holder. The Company may mail an interest check to the Holder's
registered address. Notwithstanding the foregoing, so long as this Security is
registered in the name of a Depositary or its nominee, all payments hereon shall
be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee.
3. Paying Agent, Conversion Agent and Registrar.
--------------------------------------------
Initially, Deutsche Bank Trust Company Americas (the "Trustee") will
act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and
change any Paying Agent, Conversion Agent or Registrar without notice, other
than notice to the Trustee; provided that the Company will maintain at least one
Paying Agent in the State of New York, City of New York, Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or any
of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent or Registrar.
4. Indenture.
---------
The Company issued the Securities under an Indenture dated as of
August 8, 2003 (the "Indenture"), between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are limited to $250,000,000 aggregate Principal Amount
(which shall include the Initial Purchasers' option to purchase up to
$50,000,000 of additional Securities) (subject to Section 2.07 of the
Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Redemption at the Option of the Company.
---------------------------------------
No sinking fund is provided for the Securities. The Securities are not
redeemable prior to August 13, 2010. Beginning on August 13, 2010 and during the
periods thereafter to maturity, the Securities are redeemable as a whole, or
from time to time in part, in any integral multiple of $1,000, at any time at
the option of the Company at a Redemption Price equal to 100% of the Principal
Amount), together with accrued and unpaid interest (including contingent
interest, if any) and Liquidated Damages, if any, thereon, up to but not
including the Redemption Date; provided that, if the Redemption Date is on or
after an interest record date but on or prior to the related interest payment
date, interest and Liquidated Damages, if any, will be payable to the Holders in
whose names the Securities are registered at the close of business on the
relevant record date.
6. Purchase By the Company at the Option of the Holder.
---------------------------------------------------
Subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase, at the option of the Holder, all or any
portion of the Securities held by
A-1-6
such Holder, in any integral multiple of $1,000, on August 8, 2010, August 8,
2013 and August 8, 2018 (each, a "Purchase Date") at a purchase price per
Security equal to 100% of the aggregate Principal Amount of the Security (the
"Purchase Price"), together with accrued and unpaid interest (including
contingent interest, if any) and Liquidated Damages, if any, thereon, up to but
not including the Purchase Date (provided that, if the Purchase Date is on or
after an interest record date but on or prior to the related interest payment
date, accrued and unpaid interest, if any (including contingent interest, if
any), and Liquidated Damages, if any, will be payable to the Holders in whose
names the Securities are registered at the close of business on the relevant
record date) upon delivery of a Purchase Notice containing the information set
forth in the Indenture, together with the Securities subject thereto, at any
time from the opening of business on the date that is 20 Business Days prior to
such Purchase Date until the close of business on the Business Day prior to such
Purchase Date, and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder after the occurrence of a Change in Control of the Company
for a Change in Control Purchase Price equal to 100% of the Principal Amount
thereof plus accrued and unpaid interest (including contingent interest, if any)
and Liquidated Damages, if any, thereon, up to but not including the Change in
Control Purchase Date which Change in Control Purchase Price shall be paid in
cash. Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash sufficient to pay the Purchase Price or Change in Control
Purchase Price, as the case may be, and accrued and unpaid interest (including
contingent interest, if any) and Liquidated Damages, if any, of all Securities
or portions thereof to be purchased as of the Purchase Date or the Change in
Control Purchase Date, as the case may be, is deposited with the Paying Agent on
the Business Day following the Purchase Date or the Change in Control Purchase
Date, interest (including contingent interest, if any) and Liquidated Damages,
if any, cease to accrue on such Securities (or portions thereof) immediately
after such Purchase Date or Change in Control Purchase Date, and the Holder
thereof shall have no other rights as such other than the right to receive the
Purchase Price or Change in Control Purchase Price, as the case may be, upon
surrender of such Security.
7. Notice of Redemption.
--------------------
Notice of redemption pursuant to paragraph 5 of this Security will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at the Holder's registered address. If
money sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, immediately after such Redemption Date
interest (including contingent interest, if any) and Liquidated Damages, if any,
cease to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of Principal Amount may be redeemed in part but
only in integral multiples of $1,000 of Principal Amount.
A-1-7
8. Conversion.
----------
Subject to the provisions of Article X of the Indenture, a Holder of a
Security may convert such Security into shares of Common Stock of the Company if
any of the conditions specified in paragraphs (a) through (e) of Section 10.01
of the Indenture is satisfied; provided, however, that if such Security is
called for redemption, the conversion right will terminate at the close of
business on the second Business Day before the Redemption Date of such Security
(unless the Company shall default in making the redemption 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). The initial
conversion price is $39.24 per share, subject to adjustment under certain
circumstances as described in the Indenture (the "Conversion Price"). The number
of shares issuable upon conversion of a Security is determined by dividing the
principal amount converted by the Conversion Price in effect on the Conversion
Date. In the event of a conversion of a Security in a Principal Value
Conversion, the Company has the option to deliver cash and/or Common Stock to
the Holder of the Security surrendered for such conversion as provided in
Section 10.02 of the Indenture. Upon conversion, no adjustment for interest, if
any (including contingent interest, if any), or dividends will be made. No
fractional shares will be issued upon conversion; in lieu thereof, an amount
will be paid in cash based upon the current market price (as defined in the
Indenture) of the Common Stock on the last Trading Day prior to the date of
conversion.
To convert a Security, a Holder must (a) complete and sign the
conversion notice set forth below and deliver such notice to the Conversion
Agent, (b) surrender the Security to the Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Registrar or
the Conversion Agent, (d) pay any transfer or similar tax, if required and (e)
if the Security is held in book-entry form, complete and deliver to the
Depositary appropriate instructions pursuant to the Depositary's book-entry
conversion programs. If a Holder surrenders a Security for conversion between
the record date for the payment of an installment of interest and the next
interest payment date, the Security must be accompanied by payment of an amount
equal to the interest (including contingent interest, if any) and Liquidated
Damages, if any, payable on such interest payment date on the principal amount
of the Security or portion thereof then converted; provided, however, that no
such payment shall be required if such Security has been called for redemption
on a Redemption Date within the period between and including such record date
and such interest payment date, or if such Security is surrendered for
conversion on the interest payment date. A Holder may convert a portion of a
Security equal to $1,000 or any integral multiple thereof.
A Security in respect of which a Holder has delivered a Purchase
Notice or a Change in Control Repurchase Notice exercising the option of such
Holder to require the Company to repurchase such Security as provided in Section
3.08 or Section 3.09, respectively, of the Indenture may be converted only if
such notice of exercise is withdrawn as provided above and in accordance with
the terms of the Indenture.
9. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or ex-
A-1-8
change Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities in respect of
which a Purchase Notice or a Change in Control Purchase Notice has been given
and not withdrawn (except, in the case of a Security to be purchased in part,
the portion of the Security not to be purchased) or any Securities for a period
of 15 days before the mailing of a notice of redemption of Securities to be
redeemed.
10. Persons Deemed Owners.
---------------------
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
11. Unclaimed Money or Securities.
-----------------------------
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company, for
payment as general creditors unless an applicable abandoned property law
designates another person.
12. Amendment; Waiver.
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities so long as such changes, other
than those in clause (ii), do not adversely affect the interest of
Securityholders (i) to cure any ambiguity, omission, defect or inconsistency,
(ii) to comply with Article V or Section 10.01(e) or Section 10.12 of the
Indenture, (iii) to evidence and provide for the acceptance of appointment under
the Indenture by a successor Trustee, or (iv) to comply with any requirement of
the SEC in connection with the qualification of the Indenture under the TIA.
13. Defaults and Remedies.
---------------------
Under the Indenture, Events of Default include, in summary form, (i)
default in the payment of any interest (including contingent interest, if any)
or Liquidated Damages, if any, on any Securities when the same becomes due and
payable and such default continues for 30 days; (ii) default in payment of the
Principal Amount, Redemption Price, Purchase Price or Change in Control Purchase
Price, as the case may be, in respect of the Securities when the same becomes
due and payable; (iii) failure by the Company in the performance, or breach, of
any of the Company's other covenants in the Indenture which are not remedied
within 45 days;
A-1-9
(iv) defaults by the Company in the payment at final maturity (giving effect to
any applicable grace periods and any extension thereof) of the stated principal
amount of any of the Company's or its Subsidiaries indebtedness, or acceleration
of the final stated maturity of any such indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 20 days of receipt by the Company
or such Subsidiary of notice of any such acceleration) if the aggregate
principal amount of such indebtedness aggregates $20,000,000 or more at any
time; (v) the Company or a Significant Subsidiary fails to pay when due any
final, non-appealable judgment (other than any judgment as to which a reputable
insurance company has accepted full liability) aggregating in excess of
$20,000,000, which judgments are not stayed, bonded or discharged within 60 days
after its entry; (vi) failure by the Company to issue Common Stock upon
conversion of Securities by a Holder in accordance with the provisions of the
Indenture; (vii) a Guarantee by a Guarantor that is a Significant Subsidiary
ceases to be or is asserted by the Company or any Guarantor not to be in full
force and effect (other than in accordance with the terms of the Indenture and
such Guarantees); and (viii) certain events of bankruptcy or insolvency.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) or (ii) above) if it determines that withholding notice is in their
interests.
14. Trustee Dealings with the Company.
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others.
--------------------------
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
16. Authentication.
--------------
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
17. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM ("tenants in common"), TEN ENT ("tenants by the
entireties"), JT
A-1-10
TEN ("Joint tenants with right of survivorship and not as tenants in common"),
CUST ("custodian") and U/G/M/A ("Uniform Gift to Minors Act").
18. Governing Law.
-------------
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
Yellow Corporation
00000 Xxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn.: Chief Financial Officer
A-1-11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
A-1-12
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 (which must be $1,000 or an integral multiple of $1,000):__________
If you want the stock certificate made out in another person's name
fill in the form below:
--------------------------------------------------------------------------------
(Insert the other person's soc. sec. tax ID 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)
Signature Guaranteed
----------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:
-------------------------------------
Authorized Signatory
A-1-13
GUARANTEE
Subject to the limitations set forth in the Indenture, the Guarantors
(as defined in the Indenture referred to in this Security and each hereinafter
referred to as a "GUARANTOR," which term includes any successor or additional
Guarantor under the Indenture) have jointly and severally, irrevocably and
unconditionally guaranteed (a) the due and punctual payment of the principal
(and premium, if any) of and interest (including contingent interest, if any,
and Liquidated Damages, if any), on the Securities, whether at Stated Maturity,
by acceleration, call for redemption, upon a Purchase Notice, a Change in
Control Offer, purchase or otherwise, (b) the due and punctual payment of
interest on the overdue principal of and interest (including contingent
interest), on the Securities to the extent lawful, (c) the due and punctual
performance of all other Obligations of the Company and the Guarantors to the
Holders under the Indenture and the Securities and (d) in case of any extension
of time of payment or renewal of any Securities or any of such other
Obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration, call for redemption, upon a Purchase Notice, a Change
in Control Offer, purchase or otherwise.
Payment on each Security is guaranteed, jointly and severally, by the
Guarantors pursuant to Article 11 of the Indenture and reference is made to such
Indenture for the precise terms of the Guarantees.
The Obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under its Guarantee or pursuant to its
contribution Obligations under the Indenture, result in the Obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under any applicable federal or state law or not otherwise
being void, voidable or unenforceable under any applicable bankruptcy,
reorganization, receivership, liquidation or other similar legislation or legal
principles under any applicable federal or foreign law. Each Guarantor that
makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in a pro rata amount based on the
Adjusted Net Assets of each Guarantor.
Guarantors may be released from their Guarantees upon the terms and
subject to the conditions provided in the Indenture.
The Guarantee shall be binding upon each Guarantor and its successors
and assigns and shall insure to the benefit of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions in the Indenture.
YELLOW DOT COM SUBSIDIARY, INC.
MERIDIAN IQ, LLC
YELLOW GLOBAL, LLC
XXXXX.XXX LINES, INC.
MEGASYS, INC.
A-1-14
YELLOW TRANSPORTATION, INC.
MISSION SUPPLY CO.
YELLOW TECHNOLOGIES, INC.
YELLOW REDEVELOPMENT CORP.
YELLOW RELOCATION SERVICES, INC.
By:
---------------------------------
Name:
Title:
A-1-15
SCHEDULE I
YELLOW CORPORATION
5.0% Contingent Convertible Senior Notes due 2023
Date Principal Amount Notation
August 8, 2003 $ 200,000,000
X-0-00
XXXXXXX X-0
[FORM OF CERTIFICATED SECURITY]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS SECURITY IS SUBJECT TO THE
TREASURY REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS (THE
"CONTINGENT PAYMENT DEBT REGULATIONS"). UNDER THE CONTINGENT PAYMENT DEBT
REGULATIONS, EACH HOLDER OF THIS SECURITY, REGARDLESS OF ITS METHOD OF
ACCOUNTING FOR U.S. FEDERAL INCOME TAX PURPOSES, WILL BE REQUIRED TO ACCRUE
INTEREST INCOME ON THIS SECURITY ON A CONSTANT YIELD BASIS AT AN ASSUMED YIELD
OF 9.0% PER ANNUM (THE "COMPARABLE YIELD") DETERMINED AT THE TIME OF ISSUANCE.
THIS ACCRUED INTEREST INCOME WILL BE IN EXCESS OF THE REGULAR INTEREST PAYMENTS.
FOR PURPOSES OF DETERMINING THE AMOUNT AND TIMING OF INTEREST INCOME THAT A
HOLDER WILL BE REQUIRED TO ACCRUE, YELLOW CORPORATION (THE "COMPANY") HAS
CONSTRUCTED A "PROJECTED PAYMENT SCHEDULE". HOLDERS OF THIS SECURITY MAY OBTAIN
INFORMATION REGARDING THE COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE
FOR THIS SECURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO:
YELLOW CORPORATION, 00000 XXX XXXXXX, XXXXXXXX XXXX, XXXXXX 00000, ATTN.: CHIEF
FINANCIAL OFFICER, SUCH INFORMATION TO BE MADE AVAILABLE, BEGINNING NO LATER
THAN 10 DAYS AFTER THE ISSUE DATE, PROMPTLY UPON REQUEST.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE COMMON STOCK
DELIVERABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
A-2-1
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-2-2
YELLOW CORPORATION
5.0% Contingent Convertible Senior Notes Due 2023
No.: CUSIP: 000000XX0
Issue Date: August 8, 2003 Principal Amount:
YELLOW CORPORATION, a Delaware corporation, promises to pay to
______________________________ or registered assigns, the Principal Amount of,
on August 8, 2023, subject 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. This Security is convertible as
specified on the other side of this Security.
Interest Payment Dates: August 8 and February 8, commencing February
8, 2004
Record Dates: July 15 and January 15
Dated:
YELLOW CORPORATION
By:
---------------------------------
Name:
Title:
A-2-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Deutsche Bank Trust Company Americas, as Trustee, certifies that this
is one of the Securities referred to in the within-mentioned Indenture.
By:
-------------------------------------
Authorized Signatory
Dated:
A-2-4
[FORM OF REVERSE SIDE IS IDENTICAL TO EXHIBIT A-1]
A-2-5
EXHIBIT B
TRANSFER CERTIFICATE
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"Securities Act") (or any successor provision), the undersigned registered owner
of this Security hereby certifies with respect to $[ ] Principal Amount of the
above-captioned Securities presented or surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer, or for exchange or
conversion where the securities deliverable upon such exchange or conversion are
to be registered in a name other than that of the undersigned registered owner
(each such transaction being a "transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
[ ] A transfer of the Surrendered Securities is made to the Company
or any subsidiaries; or
[ ] The transfer of the Surrendered Securities complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
[ ] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to another
available exemption from the registration requirement of the
Securities Act;
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[ ] The transferee is an Affiliate of the Company.
Date:
-------------------------------------
Signature(s)
(If the registered owner is a corporation, partnership or fiduciary,
the title of the Person signing on behalf of such registered owner must be
stated.)
B-1
Signature Guaranteed
----------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:
-------------------------------------
Authorized Signatory
B-2
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
_______________, among [GUARANTOR] (the "NEW GUARANTOR"), a subsidiary of Yellow
Corporation (or its successor), a Delaware corporation (the "COMPANY"), the
Company, the Guarantors (the "EXISTING GUARANTORS") under the Indenture referred
to below, and Deutsche Bank Trust Company Americas, a New York banking
corporation, as trustee under the Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"INDENTURE"), dated as of August 8, 2003, providing for the issuance of an
aggregate principal amount of up to $250,000,000 (including the Initial
Purchasers' option to purchase $50,000,000 of additional Notes) of 5.0%
Contingent Convertible Senior Notes due 2023 (the "SECURITIES");
WHEREAS, Section 11.08 of the Indenture provides that the Company is
required to cause the New Guarantor to execute and deliver to the Trustee a
supplemental indenture pursuant to which the New Guarantor shall jointly and
severally and unconditionally and irrevocably guarantee all of the Company's
Obligations under the Securities and the Indenture pursuant to a Guarantee
contained in the Indenture on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"HEREIN," "HEREOF" and "HEREBY" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
C-1
2. Agreement to Guarantee. The New Guarantor hereby agrees, jointly
and severally and unconditionally and irrevocably, with all other Guarantors, to
guarantee the Company's Obligations under the Securities and the Indenture on
the terms and subject to the conditions set forth in Article 11 of the Indenture
and to be bound by all other applicable provisions of the Indenture. From and
after the date hereof, the New Guarantor shall be a Guarantor for all purposes
under the Indenture and the Securities.
3. Ratification of Indenture; Supplemental Indentures Part of
Indentures. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By:
----------------------------------
Name:
Title:
YELLOW CORPORATION
By:
----------------------------------
Name:
Title:
C-2
YELLOW DOT COM SUBSIDIARY, INC.
MERIDIAN IQ, LLC
YELLOW GLOBAL, LLC
XXXXX.XXX LINES, INC.
MEGASYS, INC.
YELLOW TRANSPORTATION, INC.
MISSION SUPPLY CO.
YELLOW TECHNOLOGIES, INC.
YELLOW REDEVELOPMENT CORP.
YELLOW RELOCATION SERVICES, INC.
By:
----------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as trustee
By:
----------------------------------
Name:
Title:
C-3
