CHARMING SHOPPES, INC. 1.125% Senior Convertible Notes Due 2014 INDENTURE Dated as of April 30, 2007 WELLS FARGO BANK, NATIONAL ASSOCIATION TRUSTEE
EXHIBIT
4.1
CHARMING
SHOPPES, INC.
1.125%
Senior Convertible Notes Due 2014
__________________________________________________________
Dated
as
of April 30, 2007
__________________________________________________________
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
TRUSTEE
__________________________________________________________
Cross-Reference
Table1
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)
|
11.03
|
|
(c)
|
11.03
|
|
313
|
(a)
|
7.06
|
(b)(1)
|
7.06
|
|
(b)(2)
|
7.06
|
|
(c)
|
7.06,11.02
|
|
(d)
|
7.06
|
|
314
|
(a)
|
4.02
|
(b)
|
N.A.
|
|
(c)(1)
|
11.04
|
|
(c)(2)
|
11.04
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
11.05
|
|
(f)
|
4.04
|
|
315
|
(a)
|
7.01(b)
|
(b)
|
7.05
|
|
(c)
|
7.01(a)
|
|
(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)
|
11.01
|
___________
N.A.
means not applicable.
TABLE
OF CONTENTS
ARTICLE
1
|
||
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
||
Section
1.01.
|
Definitions.
|
1
|
Section
1.02.
|
Other
Definitions.
|
10
|
Section
1.03.
|
Incorporation
by Reference of Trust Indenture Act
|
11
|
Section
1.04.
|
Rules
of Construction
|
11
|
Section
1.05.
|
Acts
of Holders.
|
11
|
ARTICLE
2
|
||
THE
SECURITIES
|
||
Section
2.01.
|
Form
and Dating
|
13
|
Section
2.02.
|
Execution
and Authentication
|
14
|
Section
2.03.
|
Registrar,
Paying Agent, Bid Solicitation Agent and Conversion
Agent.
|
14
|
Section
2.04.
|
Paying
Agent to Hold Money and Securities in Trust
|
15
|
Section
2.05.
|
Securityholder
Lists
|
15
|
Section
2.06.
|
Transfer
and Exchange
|
15
|
Section
2.07.
|
Replacement
Securities
|
17
|
Section
2.08.
|
Outstanding
Securities; Determinations of Holders’ Action
|
18
|
Section
2.09.
|
Temporary
Securities
|
19
|
Section
2.10.
|
Cancellation
|
19
|
Section
2.11.
|
Persons
Deemed Owners
|
19
|
Section
2.12.
|
Global
Securities
|
20
|
Section
2.13.
|
CUSIP
Numbers
|
26
|
Section
2.14.
|
Payment
|
27
|
ARTICLE
3
|
||
REPURCHASES
|
||
Section
3.01.
|
Company’s
Right to Redeem
|
28
|
Section
3.02.
|
Repurchase
of Securities at Option of the Holder Upon a Fundamental
Change
|
28
|
Section
3.03.
|
Effect
of Fundamental Change Repurchase Notice.
|
31
|
Section
3.04.
|
Deposit
of Fundamental Change Repurchase Price
|
32
|
Section
3.05.
|
Securities
Purchased in Part
|
32
|
Section
3.06.
|
Covenant
to Comply with Securities Laws upon Purchase of
Securities
|
32
|
Section
3.07.
|
Repayment
to the Company
|
32
|
|
||
ARTICLE
4
|
||
COVENANTS
|
||
Section
4.01.
|
Payment
of Securities
|
33
|
Section
4.02.
|
SEC
and Other Reports
|
33
|
Section
4.03.
|
Compliance
Certificate
|
33
|
Section
4.04.
|
Further
Instruments and Acts
|
34
|
Section
4.05.
|
Maintenance
of Office or Agency
|
34
|
Section
4.06.
|
Delivery
of Certain Information
|
34
|
Section
4.07.
|
Additional
Amounts Notice
|
35
|
Section
4.08.
|
Resale
of the Securities
|
35
|
ARTICLE
5
|
||
SUCCESSOR
COMPANY
|
||
Section
5.01.
|
When
Company May Merge or Transfer Assets
|
35
|
ARTICLE
6
|
||
DEFAULTS
AND REMEDIES
|
||
Section
6.01.
|
Events
of Default
|
36
|
Section
6.02.
|
Acceleration
|
39
|
Section
6.03.
|
Other
Remedies
|
40
|
Section
6.04.
|
Waiver
of Past Defaults
|
40
|
Section
6.05.
|
Control
by Majority
|
40
|
Section
6.06.
|
Limitation
on Suits
|
40
|
Section
6.07.
|
Rights
of Holders to Receive Payment
|
41
|
Section
6.08.
|
Collection
Suit by Trustee
|
41
|
Section
6.09.
|
Trustee
May File Proofs of Claim
|
41
|
Section
6.10.
|
Priorities
|
42
|
Section
6.11.
|
Undertaking
for Costs
|
43
|
Section
6.12.
|
Waiver
of Stay, Extension or Usury Laws
|
43
|
ARTICLE
7
|
||
TRUSTEE
|
||
Section
7.01.
|
Duties
of Trustee.
|
43
|
Section
7.02.
|
Rights
of Trustee
|
45
|
Section
7.03.
|
Individual
Rights of Trustee
|
46
|
Section
7.04.
|
Trustee’s
Disclaimer
|
47
|
Section
7.05.
|
Notice
of Defaults
|
47
|
Section
7.06.
|
Reports
by Trustee to Holders
|
47
|
Section
7.07.
|
Compensation
and Indemnity
|
47
|
Section
7.08.
|
Replacement
of Trustee
|
49
|
Section
7.09.
|
Successor
Trustee by Xxxxxx
|
50
|
Section
7.10.
|
Eligibility;
Disqualification
|
50
|
Section
7.11.
|
Preferential
Collection of Claims Against Company
|
50
|
|
||
ARTICLE
8
|
||
DISCHARGE
OF INDENTURE
|
||
Section
8.01.
|
Discharge
of Liability on Securities
|
50
|
Section
8.02.
|
Repayment
to the Company
|
50
|
Section
8.03.
|
Application
of Trust Money
|
51
|
ARTICLE
9
|
||
AMENDMENTS
|
||
Section
9.01.
|
Without
Consent of Holders
|
51
|
Section
9.02.
|
With
Consent of Holders
|
52
|
Section
9.03.
|
Compliance
With Trust Indenture Act
|
53
|
Section
9.04.
|
Revocation
and Effect of Consents, Waivers and Actions
|
53
|
Section
9.05.
|
Notice
of Amendments, Notation on or Exchange of Securities
|
53
|
Section
9.06.
|
Trustee
to Sign Supplemental Indentures
|
54
|
Section
9.07.
|
Effect
of Supplemental Indentures
|
54
|
ARTICLE
10
|
||
CONVERSIONS
|
||
Section
10.01.
|
Conversion
Privilege
|
54
|
Section
10.02.
|
Conversion
Procedure; Applicable Conversion Rate; Fractional
Shares
|
58
|
Section
10.03.
|
Payment
Upon Conversion
|
60
|
Section
10.04.
|
Adjustment
of Applicable Conversion Rate
|
61
|
Section
10.05.
|
Reserved.
|
70
|
Section
10.06.
|
Effect
of Reclassification, Consolidation, Merger or Sale
|
70
|
Section
10.07.
|
Taxes
on Shares Issued
|
72
|
Section
10.08.
|
Reservation
of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements
|
73
|
Section
10.09.
|
Responsibility
of Trustee
|
73
|
ARTICLE
11
|
||
MISCELLANEOUS
|
||
Section
11.01.
|
Trust
Indenture Act Controls.
|
74
|
Section
11.02.
|
Notices
|
74
|
Section
11.03.
|
Communication
by Holders with Other Holders.
|
75
|
Section
11.04.
|
Certificate
and Opinion as to Conditions Precedent
|
75
|
Section
11.05.
|
Statements
Required in Certificate or Opinion
|
75
|
Section
11.06.
|
Separability
Clause
|
76
|
Section
11.07.
|
Rules
by Trustee, Paying Agent, Conversion Agent and
Registrar
|
76
|
Section
11.08.
|
Legal
Holidays
|
76
|
Section
11.09.
|
Governing
Law.
|
76
|
Section
11.10.
|
No
Recourse Against Others
|
76
|
Section
11.11.
|
Successors
|
76
|
Section
11.12.
|
Multiple
Originals
|
77
|
EXHIBIT
A Form
of
Global Security
EXHIBIT
B Form
of
Certificated Security
EXHIBIT
C Transfer
Certificate
EXHIBIT
D Notice
of
Occurrence of Fundamental Change
SCHEDULE
I Number
of
Additional Shares
INDENTURE
dated as of April 30, 2007 between CHARMING SHOPPES, INC., a Pennsylvania
corporation (“Company”),
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association
(“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 1.125% Senior Convertible Notes
Due 2014:
ARTICLE
1
Definitions
and Incorporation by Reference
Section
1.01.
Definitions.
“144A
Global Security”
means
a
permanent Global Security in the form of the Security attached hereto as
Exhibit
A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities
Act.
“Additional
Amounts”
means
the interest that is payable by the Company (i) pursuant to the Registration
Rights Agreement upon a Registration Default (as defined in such agreement)
and
(ii) as additional interest pursuant to Section 6.01(j).
“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
Conversion Price”
means,
at any given time, $1,000 divided by the Applicable Conversion Rate at such
time.
“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.
“Bid
Solicitation Agent”
means
the agent of the Company appointed to obtain quotations for the Securities
as
set forth under the definition of Trading Price, which agent shall be appointed
no later than May 7, 2007 and shall at no time be an Affiliate of the Company.
The Company may, from time to time, change the Bid Solicitation
Agent.
1
“Board
of Directors”
means
either the board of directors of the Company or any duly authorized committee
of
such board.
“Board
Resolution”
means
a
resolution of the Board of Directors.
“Business
Day”
means,
with respect to any Security, any day, other than a Saturday or Sunday, that
is
neither a legal holiday nor a day on which commercial banks are authorized
or
required by law, regulation or executive order to close in the City of New
York.
“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.
“cash”
means
U.S. legal tender.
“Cash
Settlement Averaging Period”
with
respect to any Security means the 50 consecutive Trading Days beginning on
the
second Trading Day after the Conversion Date for such Security, except that
with
respect to any Security with a Conversion Date occurring on or after November
15, 2013, the “Cash Settlement Averaging Period” means the 50 consecutive
Trading Days beginning on, and including, the 52nd Scheduled Trading Day
before
Stated Maturity.
“Certificated
Securities”
means
Securities that are in the form of the Securities attached hereto as Exhibit
B.
“close
of business”
means
5:00 p.m. (New York City time).
“Closing
Sale Price”
of
the
Common Stock on any date means the closing sale price per share (or, if no
closing sale price is reported, the average of the bid and asked prices or,
if
more than one in either case, the average of the average bid and the average
asked prices) on such date as reported by NASDAQ or, if the Common Stock
is not
reported by NASDAQ, in composite transactions for the principal U.S. national
or
regional securities exchange on which the Common Stock is traded. If the
Common
Stock is not listed for trading on a U.S. national or regional securities
exchange, the Closing Sale Price will be the last quoted bid price for the
Common Stock in the over-the-counter market on the relevant date as reported
by
the National Quotation Bureau Incorporated or similar organization. If the
Common Stock is not so quoted, the Closing Sale Price will be the average
of the
mid-point of the last bid and asked prices for the Common Stock on the relevant
date from each of at least three independent nationally recognized investment
banking firms selected by the Company for this purpose.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
2
“Common
Stock”
means
the common stock, par value $0.10 per share, of the Company existing on the
date
of this Indenture or any other shares of Capital Stock of the Company into
which
such Common Stock shall be reclassified or changed, including, subject to
Section 1.06 below, in the event of a merger, consolidation or other similar
transaction involving the Company that is otherwise permitted hereunder in
which
the Company is not the surviving person, the common stock of such surviving
corporation.
“Company”
means
the party named as the “Company” in the preamble 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
Notice”
means
a
notice to Holders delivered pursuant to Section 3.02.
“Company
Request”
or
“Company
Order”
means
a
written request or order signed in the name of the Company by any
Officer.
“Continuing
Director”
means
a
director who either was a member of the Board of Directors on the date of
original issuance of the Securities or who becomes a member of the Board
of
Directors subsequent to that date and whose appointment, election or nomination
for election by the Company’s shareholders is duly approved by a majority of the
Continuing Directors on the Board of Directors at the time of such approval,
either by specific vote or by approval of the proxy statement issued by the
Company on behalf of the Board of Directors in which such individual is named
as
nominee for director, it being understood that any director appointed or
nominated to fill a vacancy on the Board of Directors (without regard to
the
cause of such vacancy) by any Continuing Director shall be deemed a Continuing
Director until the next annual meeting of the Company’s shareholders at which
directors are elected.
“Conversion
Settlement Date”
means
(A) in the event the Company has not validly made a Physical Settlement
Election, with respect to the Settlement Amount owing by the Company as set
forth in Section 1.03(a), the third Business Day immediately following the
date
that the Settlement Amount is determined and (B) with respect to Settlement
Shares owing by the Company in the event the Company has validly made a Physical
Settlement Election as set forth in Section 10.03(b), the third Business
Day
immediately following the Conversion Date for such Securities, except that
(i)
in respect of Securities with a Conversion Date on or after November 15,
2013,
the Conversion Settlement Date shall be on Stated Maturity and (ii) in respect
of Securities as to which Additional Shares will be added to the Applicable
Conversion Rate pursuant to Section 10.01(c) with a Conversion Date prior
to
November 15, 2013, the Conversion Settlement Date for the Settlement Shares
(other than the Additional Shares) shall be the third Business Day following
the
Conversion Date, and the Conversion Settlement Date for the
3
Additional
Shares shall be the later of (x) the third Business Day following the Conversion
Date and (y) the relevant effective date described in Section 10.01(c) on
which
the number of Additional Shares is determined.
“Corporate
Trust Office”
means
the designated office of the Trustee at which at any time its corporate trust
business shall be principally administered, which office at the date hereof
is
located at 0000 XXX Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Corporate Trust 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).
“Daily
Conversion Value”
means,
for each of the 50 consecutive Trading Days during the Cash Settlement Averaging
Period, one-fiftieth (1/50) of the product of (1) the Applicable Conversion
Rate
on such Trading Day and (2) the Daily VWAP on such Trading Day.
“Daily
VWAP”
means,
for each of the 50 consecutive Trading Days during the Cash Settlement Averaging
Period, the per share volume-weighted average price as displayed under the
heading “Bloomberg VWAP” on Bloomberg page “CHRS.UQ <equity> AQR” (or its
equivalent successor if such page is not available) in respect of the period
from scheduled open of trading until the scheduled close of trading of the
primary trading session on that Trading Day (or if such volume-weighted average
price is unavailable, the market value of one share of the Company’s Common
Stock on that Trading Day determined, using a volume-weighted average method,
by
a nationally recognized independent investment banking firm retained for
this
purpose by the Company). The Daily VWAP will be determined without regard
to
after hours trading or any other trading outside of the regular trading session
trading hours.
“Default”
means
any event that is, or after notice or passage of time, would be, an Event
of
Default.
“DTC”
means
The Depository Trust Company.
“Ex-Dividend
Date”
means
the
first date upon which a sale of the Common Stock, regular way on the relevant
exchange or in the relevant market for the Common Stock, does not automatically
transfer the right to receive the relevant distribution from the seller of
the
Common Stock to its buyer.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Fair
Market Value”
or
“fair
market value”
means
the amount which a willing buyer would pay a willing seller in an arm’s-length
transaction.
4
“Fundamental
Change”
means
the occurrence at such time after the original issuance of the Securities
when
any of the following has occurred:
(1) a
“person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act
files a Schedule TO or any schedule, form or report under the Exchange Act
disclosing that such person or group has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares
of Common Stock representing more than 50% of the Voting Stock; or
(2) the
first
day on which a majority of the members of the Board of Directors does not
consist of Continuing Directors; or
(3)
a
consolidation, merger or binding share exchange, or any conveyance, transfer,
sale, lease or other disposition of all or substantially all of the Company’s
properties and assets to another person, other than:
(a) any
transaction (i) that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of the Company’s Capital Stock or
(ii) pursuant to which holders of the Company’s Capital Stock immediately prior
to such transaction have the entitlement to exercise, directly or indirectly,
50% or more of the total Voting Stock of the continuing or surviving or
successor person immediately after giving effect to such issuance;
or
(b) any
merger, share exchange, transfer of assets or similar transaction solely
for the
purpose of changing the Company’s jurisdiction of incorporation and resulting in
a reclassification, conversion or exchange of outstanding shares of Common
Stock, if at all, solely into shares of common stock, ordinary shares or
American Depositary Shares of the surviving entity or a direct or indirect
parent of the surviving corporation; or
(c) any
consolidation or merger with or into any Subsidiary, so long as such merger
or
consolidation is not part of a plan or a series of transactions designed
to or
having the effect of merging or consolidating with any other person;
or
(4) a
Termination of Trading.
The
term
“person” as used in this definition includes any syndicate or group that would
be deemed to be a “person” under Section 13(d)(3) of the Exchange
Act.
“Global
Securities”
means
Securities that are in the form of the Securities attached hereto as Exhibit
A,
and that are registered in the register of Securities in the name of a
Depositary or a nominee thereof, and to the extent that such Securities are
required to bear the Legend required by Section 2.06(g), such Securities
shall
be in the form of a 144A Global Security.
5
“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.
“Interest”
means
interest payable on each Security pursuant to Section 1 of the
Securities.
“Interest
Payment Date”
means
May 1 and November 1 of each year, commencing November 1, 2007.
“Interest
Record Date”
means
April 15 and October 15 of each year.
“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.
“Market
Disruption Event”
means,
for the purposes of determining the Settlement Amount, (i) a failure by NASDAQ
or, if the Common Stock is not then listed on NASDAQ, by the principal other
U.S. national or regional securities exchange on which the Common Stock is
then
listed or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, by the principal other market on which the Common Stock
is
then traded, to open for trading during its regular trading session, or (ii)
the
occurrence or existence before 1:00 p.m., New York City time, on any Trading
Day
for the Common Stock for an aggregate one half hour period of any suspension
or
limitation imposed on trading (by reason of movements in price exceeding
limits
permitted by the stock exchange or otherwise) in the Common Stock or in any
options, contracts or future contracts relating to the Common
Stock.
“NASDAQ”
means
the NASDAQ Global Select Market.
“Offering
Memorandum”
means
the offering memorandum of the Company dated April 24, 2007 relating to the
offering of the Securities.
“Officer”
means
the Chairman of the Board, the President, any Senior Vice President, Executive
Vice President or Vice President, the Chief Financial Officer, the Treasurer
or
the Secretary of the Company.
“Officer’s
Certificate”
means
a
written certificate containing the information specified in Sections 11.04
and
11.05, signed in the name of the Company by any Officer (solely in his or
her
capacity as such), and delivered to the Trustee. An Officer’s Certificate given
pursuant to Section 4.03 shall be signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company
but
need not contain the information specified in Sections 11.04 and
11.05.
6
“opening
of business”
means
9:00 a.m. (New York City time).
“Opinion
of Counsel”
means
a
written opinion containing the information specified in Sections 11.04 and
11.05, from legal counsel. The counsel may be an employee of, or counsel
to, the
Company who is reasonably acceptable to the Trustee.
“Physical
Settlement Election”
means
the irrevocable election by the Company prior to November 15, 2013, to satisfy
its Conversion Obligation in respect of conversions of Securities with a
Conversion Date after the Physical Election Date solely in shares of Common
Stock (plus cash in lieu of fractional shares) in accordance with Section
10.03(b) hereof.
“Physical
Settlement Election Date”
means
the date on which a Physical Settlement Election Notice is delivered to the
Trustee and Holders.
“Physical
Settlement Election Notice”
means
a
written notice of a Physical Settlement Election provided by the Company
to the
Trustee and each Holder of Securities.
“Purchase
Agreement”
means
the Purchase Agreement dated April 24, 2007 among the Company, on the one
hand,
and Banc of America Securities LLC and X.X. Xxxxxx Securities Inc., as
representatives of the several initial purchasers, on the other, relating
to the
Securities.
“Record
Date”
shall
mean, with respect to any dividend, distribution or other transaction or
event
in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities
or other property, the date fixed for determination of stockholders entitled
to
receive such cash, securities or other property (whether such date is fixed
by
the Board of Directors or by statute, contract or otherwise).
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated the date hereof, among the Company,
on
the one hand, and Banc of America Securities LLC and X.X. Xxxxxx Securities
Inc., on the other.
“Responsible
Officer”
means,
when used with respect to the Trustee, any officer of the Trustee within
the
Corporate Trust Office of the Trustee who has direct responsibility for the
administration of this Indenture and, for the purposes of Section 7.01(c)(2)
and
7.05 shall also mean any other officer of the Trustee to whom any corporate
trust matter is referred because of such person’s knowledge of and familiarity
with the particular subject matter.
“Restricted
Security”
means
a
Security required to bear the Legend.
7
“Rule
144A”
means
Rule 144A under the Securities Act (or any successor provision), as it may
be
amended from time to time.
“Scheduled
Trading Day”
means
a
day that is scheduled to be a Trading Day on the primary U.S. national or
regional securities exchange or market on which the Common Stock is listed
or
admitted to trading.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations of
the SEC
promulgated thereunder.
“Security”
means
any of the Company’s 1.125% Senior Convertible Notes Due 2014, as amended or
supplemented from time to time, issued under this Indenture.
“Securityholder”
or
“Holder”
means
a
person in whose name a Security is registered on the Registrar’s
books.
“Significant
Subsidiary”
means
any subsidiary of the Company that is a significant subsidiary at any
determination date pursuant to Regulation S-X, Rule 1-02(w)(1) or
(2).
“Stated
Maturity”,
when
used with respect to any Security, means May 1, 2014.
“Stock
Price”
means
the price per share of Common Stock paid in connection with a Fundamental
Change
transaction pursuant to which Additional Shares will be added to the Applicable
Conversion Rate as set forth in Section 10.01(c) hereof, which shall be equal
to
(i) if Holders of Common Stock receive only cash in such Fundamental Change
transaction, the cash amount paid per share of Common Stock and (ii) in all
other cases, the average of the Closing Sale Prices of the Common Stock on
the
five Trading Days immediately before, but not including, the effective date
of
such Fundamental Change transaction.
“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.
“Termination
of Trading”
means
the
occurrence, at any time, of the Common Stock of the Company (or other common
stock into which the Securities are then convertible) not being listed for
trading on a U.S. national or regional securities exchange.
8
“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 on which (i) trading in securities generally occurs on NASDAQ or, if
the
Common Stock is not then listed on NASDAQ, on the principal other U.S. national
or regional securities exchange on which the Common Stock is then listed
or, if
the Common Stock is not then listed on a U.S. national or regional securities
exchange, in the principal other market on which the Common Stock is then
traded
and (ii) a Closing Sale Price for the Common Stock is available on such
securities exchange or market; provided
that
for
the purposes of determining the amount of payment upon conversion only, “Trading
Day” means a day on which (i) there is no Market Disruption Event and (ii)
trading generally in the Common Stock occurs on NASDAQ or, if the Common
Stock
is not then listed on NASDAQ, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a U.S. national or regional securities exchange,
in
the principal other market on which the Common Stock is then traded. If the
Common Stock (or other security for which a Closing Sale Price or Daily VWAP,
as
applicable, must be determined) is not so traded, “Trading Day” means a Business
Day.
“Trading
Price”
of
the
Securities on any date of determination means the average of the secondary
market bid quotations per $1,000 principal amount of the Securities obtained
by
the Bid Solicitation Agent for $5,000,000 aggregate principal amount of the
Securities at approximately 3:30 p.m., New York City time, on such determination
date from three independent nationally recognized securities dealers the
Company
selects, provided
that if
three such bids cannot reasonably be obtained by the Bid Solicitation 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 Bid Solicitation Agent,
that one bid shall be used, provided
further
that if
no bids can reasonably be obtained, then for purposes of determining whether
the
condition to conversion of the Securities set forth in Section 10.01(a)(2)
has
been satisfied, the Trading Price per $1,000 principal amount of the Securities
will be deemed to be less than 98% of the product of the Closing Sale Price
of
the Common Stock and the Applicable Conversion Rate on such date.
“Trustee”
means
the party named as the “Trustee” in the preamble of this Indenture unless and
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,
9
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.
Terms:
|
Defined
in Section:
|
“Act”
|
1.05(a)
|
“Additional
Amounts Notice”
|
4.07
|
“additional
interest”
|
6.01(j)
|
“Additional
Shares
|
10.01(c)
|
“Agent
Members”
|
2.12(e)(v)
|
“Applicable
Conversion Rate”
|
10.02(a)
|
“Bankruptcy
Law”
|
6.01(h)
|
“Conversion
Agent”
|
2.03
|
“Conversion
Date”
|
10.02(d)
|
“Conversion
Notice”
|
10.02(c)
|
“Conversion
Obligation”
|
10.03(a)
|
“Daily
Excess Amount”
|
10.03(a)(i)(B)
|
“Daily
Settlement Amount”
|
10.03(a)(i)
|
“Depositary”
|
2.01(b)
|
“DTC”
|
2.01(b)
|
“effective
date”
|
10.01(c)
|
“Event
of Default”
|
6.01
|
“Exchange
Property”
|
10.06(a)
|
“Fiscal
Quarter”
|
10.01(a)(1)
|
“Fundamental
Change Repurchase Date”
|
3.02(a)
|
“Fundamental
Change Repurchase Notice”
|
3.02(c)
|
“Fundamental
Change Repurchase Price”
|
3.02(a)
|
“Indemnitees”
|
7.07(c)
|
“legal
holiday”
|
11.08
|
“Legend”
|
2.06(g)
|
“Losses”
|
7.07(c)
|
“Measurement
Period”
|
10.01(a)(2)
|
“Notice
of Default”
|
6.01
|
“Paying
Agent”
|
2.03
|
“QIBs”
|
2.01(b)
|
“Registrar”
|
2.03
|
“Rule
144A Information”
|
4.06
|
“Settlement
Amount”
|
10.03(a)
|
“Settlement
Shares”
|
10.03(b)
|
“Spin
Off”
|
10.04(c)
|
“successor
company”
|
5.01(a)
|
“Trigger
Event”
|
10.04(c)
|
10
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.
“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
TIA
reference to another statute or defined by SEC rules have the meanings assigned
to them by such definitions.
Section
1.04.
Rules of Construction.
Unless
the context otherwise requires:
(1) a
term
has the meaning assigned to it;
(2) 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;
(3) “or”
is
not exclusive;
(4) “including”
means including, without limitation;
(5) words
in
the singular include the plural, and words in the plural include the singular;
and
(6) references
to Sections and Articles are to references to Sections and Articles of this
Indenture.
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 an 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, as described in Section
11.02. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes
11
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. 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
principal amount and serial number of any Security and the ownership of
Securities shall be proved by the register for the Securities.
(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.
12
ARTICLE
2
The
Securities
Section
2.01.
Form and Dating.
(a)
The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibits A and B, which are a part of this
Indenture. 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 writing. Each Security shall be dated the date of its
authentication.
The
Securities may, but need not, have the corporate seal of the Company or a
facsimile thereof affixed thereto or imprinted thereon.
(b) 144A
Global Securities. Securities
offered and sold within the United States 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 Trustee at its Corporate Trust
Office, as custodian for the Depositary (as defined below) and registered
in the
name of The Depository Trust Company (“DTC”)
or the
nominee thereof (DTC, 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.
(c) 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 in the Schedule
of
Increases and Decreases of Global Security attached thereto and that the
aggregate amount of outstanding Securities represented thereby may from time
to
time be reduced or increased, as appropriate, to reflect exchanges, repurchases
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 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.
(d) Book-Entry
Provisions.
This
Section 2.01(d) shall apply only to Global Securities deposited with or on
behalf of the Depositary.
The
Company shall execute and the Trustee shall, in accordance with this Section
2.01(d), authenticate and deliver initially one or more Global Securities
that
(a) shall be registered in the name of the Depositary or a nominee thereof,
(b)
shall be delivered by the Trustee to the Depositary or held by the Trustee
pursuant to the
13
Depositary’s
instructions and (c) shall be substantially in the form of Exhibit A attached
hereto.
(e) Certificated
Securities. Securities
not issued as interests in the Global Securities shall be registered in the
name
of the Holder and issued in certificated form substantially in the form of
Exhibit B attached hereto.
Section
2.02.
Execution and Authentication.
The
Securities shall be executed on behalf of the Company by one Officer. The
signature of such Officer on the Securities may be manual or
facsimile.
Securities
bearing the manual or facsimile signature of an individual who was, at the
time
of the execution of the Securities, an Officer shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior
to the
authentication and delivery of such Securities or did not hold such office
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 an authorized signatory, 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 the Securities for original issue
in an
aggregate principal amount of up to $250,000,000 (plus up to an additional
$25,000,000 upon exercise of the initial purchasers’ option to purchase
additional Securities pursuant to the Purchase Agreement) upon one or more
Company Orders without any further action by the Company. The aggregate
principal amount of the Securities due at the Stated Maturity thereof
outstanding at any time may not exceed the amount set forth in the foregoing
sentence.
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 of
$1,000.
Section
2.03.
Registrar, Paying Agent, Bid Solicitation 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, one or more additional bid solicitation agents and one or
more
additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named
14
pursuant
to Section 4.05. The term Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.05.
The
Company shall enter into an appropriate agency agreement with any Registrar,
Paying Agent, Conversion Agent, Bid Solicitation Agent or co-registrar (in
each
case, if such Registrar, agent or co-registrar is a person other than the
Trustee). The agreement shall implement the provisions of this Indenture
that
relate to such agent. The Company shall promptly notify the Trustee 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 and Securities 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) or shares of
Common Stock 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 and shares of Common Stock held by the Paying Agent
for
the making of payments in respect of the Securities and shall promptly 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
and
shares of Common Stock 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
and shares of Common Stock 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
and shares of Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or shares of Common Stock.
Section
2.05.
Securityholder Lists.
The
Trustee shall preserve 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 April
15 and
October 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 Security, together with a
15
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 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 which 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 in respect of which a Fundamental Change
Repurchase 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).
(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, except
as
set forth in Section 2.12, be limited to transfers of such Global Security
in
whole or in part, to the Depositary, 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) Except
as
otherwise set forth in this Indenture, any such action taken by a Holder
shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made
upon
such Security or any Security issued in exchange or substitution
therefor.
16
(e) 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.
(f) 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.
(g) If
Securities are issued upon the transfer, exchange or replacement of Securities
subject to restrictions on transfer and bearing the legends relating to such
restrictions imposed by the securities laws set forth on the forms of Security
attached hereto as Exhibits A and B setting forth such restrictions
(collectively, the “Legend”),
or if
a request is made to remove the Legend on a Security, the Securities 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 and the Trustee
(if
not the same person as the Registrar) such satisfactory evidence, which shall
include an opinion of counsel, as may be reasonably required by the Company
and
the Registrar and the Trustee (if not the same person as 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
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 the Company or an Affiliate of the Company, the Legend
shall be reinstated.
Section
2.07.
Replacement Securities.
If
(a)
any mutilated Security is surrendered to the Trustee, or (b) 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 and/or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that
such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its 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
certificate 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 3 hereof, the Company in its discretion may, instead of issuing a
new
Security, pay or purchase such Security, as the case may be.
17
Upon
the
issuance of any new Securities under this Section 2.07, 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 2.07 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an additional obligation
of
the Company 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 2.07 are exclusive and shall preclude (to the
extent
lawful) all other rights and remedies with respect to the replacement or
payment
of mutilated, destroyed, lost or stolen Securities.
Section
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 purchased pursuant to Section 2.07,
those 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, waiver, or other Act 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, waiver or
other
act, only Securities which a Responsible Officer of the Trustee actually
knows
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 Article 6 and Article 9).
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 the Business Day
immediately following a Fundamental Change Repurchase Date, or on Stated
Maturity, money or securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then from and after such Fundamental Change
Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Interest and Additional Amounts, if any, on such
Securities shall cease to accrue.
18
If
a
Security is converted in accordance with Article 10, then from and after
the
date of conversion, such Security shall cease to be outstanding, and Interest
and Additional Amounts, if any, shall cease to accrue and the rights of the
Holders therein shall terminate (other than the right to receive the Settlement
Amount).
Section
2.09.
Temporary Securities.
Pending
the preparation of Certificated Securities, the Company may execute, and
upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
Certificated 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 shall cause Certificated Securities
to be prepared without unreasonable delay. After the preparation of Certificated
Securities, the temporary Securities shall be exchangeable for Certificated
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 Certificated Securities
of authorized denominations. Until so exchanged the temporary Securities
shall
in all respects be entitled to the same benefits under this Indenture as
Certificated Securities.
Section
2.10.
Cancellation.
All
Securities surrendered for payment, purchase by the Company pursuant to Article
3, conversion or registration of transfer or exchange shall, if surrendered
to
any person other than the Trustee, be delivered to the Trustee and shall
be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may
not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation other than in connection with registrations of transfer
or exchange or that any Holder has converted pursuant to Article 10. 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 any
portion thereof, or the payment of any Fundamental Change Repurchase Price
in
respect thereof, and Interest or
19
Additional
Amounts 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)
Notwithstanding
any other provisions of this Indenture or the Securities, (A) transfers of
a
Global Security, in whole or in part, shall be made only in accordance with
Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a beneficial
interest in a Global Security for a Certificated Security shall comply with
Section 2.069 and Section 2.12(a)(ii) below and Section 2.12(c) below, and
(C)
transfers of a Certificated Security shall comply with Section 2.06, Section
2.12(a)(iii) and Section 2.12(a)(iv) below, as applicable.
(i) Transfer
of Global Security.
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
this
Section 2.12(a)(i) shall not prohibit any transfer of a Security that is
issued
in exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any person shall be effective under this Indenture
or
the Securities unless and until such Security has been registered in the
name of
such person. Nothing in this Section 2.12(a)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security effected
in accordance with the other provisions of this Section 2.12.
(ii) Restrictions
on Transfer of a Beneficial Interest in a Global Security for a Certificated
Security.
A
beneficial interest in a Global Security may not be exchanged for a Certificated
Security except upon satisfaction of the requirements set forth in this clause
(ii) below and in Section 2.12(e) below. Upon receipt by the Trustee of a
request to transfer a beneficial interest in a Global Security in accordance
with Applicable Procedures for a Certificated Security in the form satisfactory
to the Trustee, together with:
(A) so
long
as the Securities are Restricted Securities, a certification, in the form
set
forth in Exhibit C, that such beneficial interest in a Global Security (1)
is
being transferred to a QIB in accordance with Rule 144A or (2) is being
transferred pursuant to and in compliance with Rule 144 under the Securities
Act
or another exemption from the securities laws (which is documented to the
Company’s satisfaction);
20
(B) written
instructions from the Holder to the Trustee to make, or direct the Registrar
to
make, an adjustment on its books and records with respect to such Global
Security to reflect a decrease in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be decreased; and
(C) if
the
Company or the Trustee so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the restrictions
set
forth in the Legend,
then
the
Trustee shall cause, or direct the Registrar to cause, in accordance with
the
standing instructions and procedures existing between the Depositary and
the
Registrar, the aggregate principal amount of the Securities represented by
the
Global Security to be decreased by the aggregate principal amount of the
Certificated Security to be issued, shall issue such Certificated Security
and
shall debit or cause to be debited to the account of the person specified
in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.
(iii) Transfer
and Exchange of Certificated Securities.
When
Certificated Securities are presented to the Registrar with a
request:
(A) to
register the transfer of such Certificated Securities; or
(B) to
exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,
the
Registrar shall register the transfer or make the exchange as requested if
its
reasonable requirements for such transaction are met; provided,
however, that the Certificated Securities surrendered for transfer or
exchange:
(1) shall
be
duly endorsed or accompanied by a written instrument of transfer reasonably
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(2) so
long
as such Securities are Restricted Securities, such Securities are being
transferred or exchanged pursuant to an effective registration statement
under
the Securities Act or pursuant to clause (x), (y) or (z) below, and are
accompanied by the following additional information and documents, as
applicable:
21
(x) if
such
Certificated Securities are being delivered to the Registrar by a Holder
for
registration in the name of such Holder, without transfer, a certification
from
such Holder to that effect; or
(y) if
such
Certificated Securities are being transferred to the Company, a certification
to
that effect (in the form set forth in Exhibit C); or
(z) if
such
Certificated Securities are being transferred pursuant to an exemption from
registration under the Securities Act, (i) a certification to that effect
(in
the form set forth in Exhibit C, if applicable) and (ii) if the Company or
the
Trustee so requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions set forth in
the
Legend.
(iv) Restrictions
on Transfer or Exchange of a Certificated Security for a Beneficial Interest
in
a Global Security.
A
Certificated Security may not be transferred or exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements
set
forth below.
Upon
receipt by the Trustee of a Certificated Security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(A) so
long
as the Securities are Restricted Securities, a certification, in the form
set
forth in Exhibit C, that such Certificated Security (1) is being transferred
to
the Company, (2) is being transferred to a QIB in accordance with Rule 144A
or
(3) is being transferred pursuant to and in compliance with Rule 144 under
the
Securities Act or another exemption from the securities laws (which is
documented to the Company’s satisfaction);
(B) written
instructions from the Holder directing the Trustee to make, or to direct
the
Registrar to make, an adjustment on its books and records with respect to
such
Global Security to reflect an increase in the aggregate principal amount
of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such increase;
and
(C) if
the
Company, or the Trustee so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the restrictions
set
forth in the Legend,
22
then
the
Trustee shall cancel such Certificated Security and cause, or direct the
Registrar to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate principal
amount of Securities represented by the Global Security to be increased by
the
aggregate principal amount of the Certificated Security to be exchanged,
and
shall credit or cause to be credited to the account of the person specified
in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so cancelled. If no Global
Securities are then outstanding, the Company shall issue and the Trustee
shall
authenticate, upon written order of the Company in the form of an Officer’s
Certificate, a new Global Security in the appropriate principal
amount.
(b) Subject
to the succeeding Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of
an
opinion of counsel, if so required. Whenever any Restricted Security is
presented or surrendered 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
C, 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 thereto). 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 under the Securities Act (or any successor provision thereto),
by
an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company and the
Trustee, addressed to the Company and the Trustee and in form acceptable
to the
Company and the Trustee, to the effect that the transfer of such Security
has
been made in compliance with Rule 144 under the Securities Act or such successor
provision), be exchanged for a new Security, of like tenor and aggregate
principal amount, which shall not bear the restrictive 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.
23
(d) As
used
in the preceding two paragraphs of this Section 2.12, the term “transfer”
includes any sale, pledge, transfer, loan, hypothecation, or other disposition
of any Security.
(e) The
provisions of clauses (i), (ii), (iii), (iv) and (v) 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 (i)
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 (ii)
the
Company determines at any time that the Securities shall no longer be
represented by Global Securities and shall inform such Depositary of such
determination in writing and participants in such Depositary elect to withdraw
their beneficial interests in the Global Securities from such Depositary,
following notification by the Depositary of their right to do so or (iii)
an Event
of Default has occurred and is continuing. Any Global Security exchanged
pursuant to clause (i) above shall be so exchanged in whole and not in part,
and
any Global Security exchanged pursuant to clauses (ii) or (iii) 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 or any successor of either of the foregoing
pursuant to this paragraph 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, 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 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
24
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 0 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 shall promptly make available to the Trustee a reasonable supply
of
Certificated Securities in definitive, fully registered form.
(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 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.
(vi) Except
as
expressly set forth in this Indenture, including Sections 2.12(a)(ii) and
2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the Company
or
the Registrar shall have any responsibility or obligation to any beneficial
owner in the Global Securities, a member of, or a participant in the Depositary
or other person with respect to the accuracy of the records of the Depositary
or
its nominee or of any participant or member thereof, with respect to any
ownership interest in the Global Securities or with respect to the delivery
to
any participant, member, beneficial owner or other person (other than the
Depositary) of any notice or the payment of any amount, under or with respect
to
such Global Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall
be
given or made only to or upon the order of the registered Holders (which
shall
be, in the case of a Global Security, the Depositary or its nominee). The
rights
of beneficial owners in the Global Securities shall be exercised only through
the Depositary subject to the applicable rules and procedures of the Depositary.
25
Other
than as set forth in this Indenture, the Trustee, any Paying Agent, the
Conversion Agent, the Company and the Registrar may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners. Except as expressly
set
forth in this Indenture, including Sections 2.12(a)(ii) and 2.12(e), the
Trustee, each Paying Agent, the Conversion Agent, the Company and the Registrar
shall be entitled to deal with any depositary (including the Depositary),
and
any nominee thereof, that is the Holder of any Global Securities as a Holder
for
all purposes of this Indenture relating to such Global Securities (including
the
payment of principal, Interest and Additional Amounts, if any, and the giving
of
instructions or directions by or to the owner or Holder of a beneficial
ownership interest in such Global Securities) as the sole Holder of such
Global
Securities and shall have no obligations to the beneficial owners thereof.
None
of the Trustee, any Paying Agent, the Conversion Agent, the Company or the
Registrar shall have any responsibility or liability for any acts or omissions
of any such depositary with respect to such Global Securities, for the records
of any such depositary, including records in respect of beneficial ownership
interests in respect of any such Global Securities, for any transactions
between
such depositary and any participant in such depositary or between or among
any
such depositary, any such participant and/or any holder or owner of a beneficial
interest in such Global Securities or for any transfers of beneficial interests
in any such Global Securities.
(f) The
Trustee and the Registrar shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the
terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
The
Trustee shall have no responsibility for the actions or omissions of the
Depositary, or the accuracy of the books and records of the
Depositary.
Section
2.13.
CUSIP Numbers.
The
Company may issue the Securities with one or more “CUSIP,” “ISIN” or other
similar numbers (if then generally in use), and, if so, the Trustee shall
use
“CUSIP,” “ISIN” or other similar numbers in notices 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 purchase and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the
Trustee
of any change in the CUSIP, ISIN or other similar numbers.
26
Section
2.14.
Payment. If
any
Interest Payment Date, Stated Maturity, Fundamental Change Repurchase Date,
Conversion Settlement Date or other date when payment is required to be made
under this Indenture falls on a day that is not a Business Day, then the
required payment will be made on the next succeeding Business Day with the
same
force and effect as if made on the date that the payment was due, and no
additional Interest will accrue on that payment for the period from and after
the Interest Payment Date, Stated Maturity, Fundamental Change Repurchase
Date,
Conversion Settlement Date or other payment date, as the case may be, to
that
next succeeding Business Day.
27
ARTICLE
3
Repurchases
Section
3.01.
Company’s Right to Redeem.
The
Securities shall not be redeemable at the option of the Company prior to
their
Stated Maturity.
Section
3.02.
Repurchase of Securities at Option of the Holder Upon a Fundamental
Change. (a)
If a
Fundamental Change occurs, each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase for cash all of such Holder’s
Securities, or any portion thereof that is equal to or an integral multiple
of
$1,000 principal amount, at a repurchase price equal to 100% of the principal
amount of the Securities repurchased, plus accrued and unpaid Interest and
accrued and unpaid Additional Amounts, if any, on those Securities (the
“Fundamental
Change Repurchase Price”)
to,
but not including, the date that is 30 calendar days following the date of
the
notice of a Fundamental Change mailed by the Company pursuant to Section
3.02(b)
(the “Fundamental
Change Repurchase Date”),
subject to satisfaction by or on behalf of the Holder of the requirements
set
forth in Section 3.02(c). If the Fundamental Change Repurchase Date is on
a date
that is after an Interest Record Date and on or prior to the corresponding
Interest Payment Date, the Fundamental Change Repurchase Price shall be 100%
of
the principal amount of the Securities repurchased and shall include accrued
and
unpaid Interest and accrued and unpaid Additional Amounts, if any, to, but
not
including, the Fundamental Change Repurchase Date.
(b) No
later
than 15 calendar days after the occurrence of a Fundamental Change, the Company
shall mail a Company Notice of the Fundamental Change (substantially in the
form
of Exhibit D) by mail to the Trustee and to each Holder (and to beneficial
owners if required by applicable law). Simultaneously with providing such
notice, the Company will issue a press release. The Company Notice shall
include
a form of Fundamental Change Repurchase Notice to be completed by the Holder
and
shall state:
(i) briefly,
the events causing a Fundamental Change and the date of such Fundamental
Change;
(ii) the
date
by which the Fundamental Change Repurchase Notice pursuant to this Section
3.02
must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;
(iii) the
Fundamental Change Repurchase Date;
(iv) the
Fundamental Change Repurchase Price;
(v) the
name
and address of the Paying Agent and the Conversion Agent;
(vi) the
Applicable Conversion Rate;
28
(vii) that
the
Securities as to which a Fundamental Change Repurchase Notice has been given
may
be converted if they are otherwise convertible pursuant to Article 10 hereof
only if the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(viii) that
the
Securities must be surrendered to the Paying Agent (by effecting book entry
transfer of the Securities or delivering Certificated Securities, together
with
necessary endorsements, as the case may be) to collect payment;
(ix) that
the
Fundamental Change Repurchase Price for any Security as to which a Fundamental
Change Repurchase Notice has been duly given and not withdrawn shall be paid
promptly following the later of the Business Day immediately following the
Fundamental Change Repurchase 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
3.02;
(xi) briefly,
the conversion rights, if any, that exist on the Securities at the date of
the
Company Notice and as a result of such Fundamental Change;
(xii) the
procedures for withdrawing a Fundamental Change Repurchase Notice;
(xiii) that,
unless the Company defaults in making payment of such Fundamental Change
Repurchase Price on Securities for which a Fundamental Change Repurchase
Notice
is submitted, Interest and Additional Amounts, if any, on Securities surrendered
for purchase by the Company shall cease to accrue from and after the Fundamental
Change Repurchase Date; and
(xiv) the
CUSIP, “ISIN” or other similar number(s), as the case may be, of the
Securities.
At
the
Company’s request, the Trustee shall give such Company Notice to each Holder in
the Company’s name and at the Company’s expense; provided,
however,
that,
in all cases, the text of such Company Notice shall be prepared by the
Company.
(c) A
Holder
may exercise its rights specified in this Section 3.02 upon delivery of a
written notice of repurchase (a “Fundamental
Change Repurchase Notice”)
to the
Paying Agent at any time on or prior to the close of business on
the
29
Business
Day immediately preceding the Fundamental Change Repurchase Date,
stating:
(i) if
Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated
Securities have not been issued, the Fundamental Change Repurchase Notice
shall
comply with the appropriate Depositary procedures for book-entry
transfer;
(ii) the
portion of the principal amount of the Security which the Holder shall deliver
to be repurchased, which portion must be $1,000 or an integral multiple of
$1,000; and
(iii) that
such
Security shall be repurchased pursuant to the terms and conditions specified
in
Section 4 of the Securities and in this Indenture.
The
delivery of such Security (together with all necessary endorsements) and
the
Fundamental Change Repurchase Notice to the Paying Agent at the offices of
the
Paying Agent shall be a condition to the receipt by the Holder of the
Fundamental Change Repurchase Price therefor; provided,
however,
that
such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.02 only if the Security (together with all necessary endorsements)
so
delivered to the Paying Agent shall conform in all respects to the description
thereof set forth in the related Fundamental Change Repurchase
Notice.
The
Company shall repurchase from the Holder thereof, pursuant to this Section
3.02,
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
repurchase of all of a Security also apply to the repurchase of such portion
of
such Security.
Any
repurchase by the Company contemplated pursuant to the provisions of this
Section 3.02 shall be consummated by the delivery of the Fundamental Change
Repurchase Price promptly following the later of the Business Day following
the
Fundamental Change Repurchase Date or the time of delivery of such Security
(together with all necessary endorsements or notifications of book-entry
transfer).
Notwithstanding
the foregoing, Holders shall not have the right to require the Company to
repurchase the Securities upon a Fundamental Change described in clause (3)
of
the definition thereof if more than 90% of the consideration in the transaction
or transactions constituting such Fundamental Change consists of shares of
common stock traded or to be traded immediately following such Fundamental
Change on a U.S. national or regional securities exchange, and, as a result
of
such transaction or transactions, the Securities become convertible into
such
common stock (and any rights attached thereto) subject to the settlement
provisions of Section 10.03.
30
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the
Fundamental Change Repurchase Notice contemplated by this Section 3.02(c)
shall
have the right to withdraw such Fundamental Change Repurchase Notice by delivery
of a written notice of withdrawal to the Paying Agent in accordance with
Section
3.03(b) at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Notice or written withdrawal thereof.
Section
3.03.
Effect of Fundamental Change Repurchase Notice. (a)
Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section 3.02, the Holder of the Security in respect of which
such
Fundamental Change Repurchase Notice was given shall (unless such Fundamental
Change Repurchase Notice is withdrawn as specified in Section 3.03(b))
thereafter be entitled solely to receive the Fundamental Change Repurchase
Price
with respect to such Security whether or not the Security is, in fact, properly
delivered. Such Fundamental Change Repurchase Price 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 Business Day following the Fundamental
Change Repurchase Date with respect to such Security (provided the conditions
in
Section 3.02 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
3.02. Securities in respect of which a Fundamental Change Repurchase Notice
has
been given by the Holder thereof may not be converted pursuant to and to
the
extent permitted by Article 10 hereof on or after the date of the delivery
of
such Fundamental Change Repurchase Notice unless such Fundamental Change
Repurchase Notice has first been validly withdrawn as specified in Section
3.03(b).
(b) A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent at any time,
if
received by the Paying Agent prior to the close of business on the Business
Day
immediately preceding the Fundamental Change Repurchase Date
specifying:
(1) the
principal amount, if any, of such Security which remains subject to the original
Fundamental Change Repurchase Notice and which has been or shall be delivered
for purchase by the Company,
(2) if
Certificated Securities have been issued, the certificate number, if any,
of the
Security in respect of which such notice of withdrawal is being submitted
(or,
if Certificated Securities have not been issued, that such withdrawal notice
shall comply with the appropriate Depositary procedures), and
31
(3) the
principal amount of the Security with respect to which such notice of withdrawal
is being submitted.
Section
3.04.
Deposit of Fundamental Change Repurchase Price.
Prior
to
11:00 a.m. (local time in the City of New York) on the Business Day following
the Fundamental Change Repurchase Date the Company shall deposit 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 cash in immediately available funds sufficient
to pay
the aggregate Fundamental Change Repurchase Price of all the Securities or
portions thereof which are to be purchased as of the Fundamental Change
Repurchase Date.
Section
3.05.
Securities Purchased in Part.
Any
Certificated Security which is to be purchased only in part (but any such
partial purchase shall be in minimum principal amounts equal to $1,000 or
an
integral multiple of $1,000) 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 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
3.06.
Covenant to Comply with Securities Laws upon Purchase of
Securities.
When
complying with the provisions of Section 3.02 hereof (provided that 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), and subject to any
exemptions available under applicable law, the Company shall, if then
applicable, (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor
provision) and any other applicable tender offer rules under the Exchange
Act,
(ii) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, and (iii) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under Section
3.02 to
be exercised in the time and in the manner specified in Section
3.02.
Section
3.07.
Repayment to the Company.
The
Trustee and the Paying Agent shall return to the Company any cash that remains
unclaimed as provided in Section 12 of the Securities, together with interest,
if any, thereon (subject to the provisions of Section 7.01(f)), held by them
for
the payment of the Fundamental Change Repurchase Price.
32
ARTICLE
4
Covenants
Section
4.01.
Payment of Securities.
The
Company shall 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
of cash in immediately available funds or shares of Common Stock to be given
to
the Trustee or Paying Agent shall be deposited with the Trustee or Paying
Agent
by 11:00 a.m., New York City time, by the Company on the applicable payment
date. The principal amount of, and Interest and Additional Amounts, if any,
on
the Securities, and the Fundamental Change Repurchase Price and amounts payable
on conversion shall be considered paid on the applicable date due if on such
date (which, in the case of a Fundamental Change Repurchase Price, shall
be on
the Business Day immediately following the applicable Fundamental Change
Repurchase Date) the Trustee or the Paying Agent holds, in accordance with
this
Indenture, cash or securities, if permitted hereunder, sufficient to pay
all
such amounts then due.
Section
4.02.
SEC
and Other Reports.
The
Company shall deliver to the Trustee, within 15 days after it is required
to
file 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; provided,
however,
that,
to the extent permitted by law, any such document, information and other
reports
filed and publicly available through the SEC’s XXXXX filing system shall be
deemed to have been received by the Trustee. The Company shall also comply
with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only
and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).
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 ending February
2,
2008) an Officer’s Certificate, stating whether or not to the knowledge of the
signer 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 such Officer may have knowledge and otherwise comply
with Section 314(a)(4) of the TIA.
The
Company shall, so long as any of the Securities are outstanding, deliver
to the
Trustee, within 30 days of any executive officer of the Company
becoming
33
aware
of
any Default or Event of Default, an Officer’s Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to
take with respect thereto.
Section
4.04.
Further Instruments and Acts.
The
Company shall 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 shall 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 or
conversion and where notices and demands to or upon the Company in respect
of
the Securities and this Indenture may be served. The office of the Trustee,
located at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, shall initially
be
such office or agency for all of the aforesaid purposes. Such office or agency
need not be the principal securities clearance or processing office of the
Trustee. The Company shall give prompt written notice to the Trustee of the
location, and of any change in the location, of any 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 11.02.
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
until such time as neither the Securities nor any shares of Common Stock
issued
upon conversion of the Securities are “restricted securities” within the meaning
of Rule 144 of the Securities Act, upon the request of a Holder or any
beneficial owner of Securities or Holder or beneficial owner of shares of
Common
Stock issued upon conversion thereof, the Company shall 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 shares
of
Common Stock issued upon conversion thereof, or to a prospective purchaser
of
any such security designated by any such Holder or beneficial owner, as the
case
may be, to the extent required to permit compliance by such Holder or beneficial
owner with Rule 144A 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.
34
Whether
a
person is a beneficial owner shall be determined by the Company to the Company’s
reasonable satisfaction.
Section
4.07.
Additional Amounts Notice.
In
the
event that the Company is required to pay Additional Amounts to Holders of
Securities pursuant to the Registration Rights Agreement, the Company shall
provide written notice (“Additional
Amounts Notice”)
to the
Trustee of its obligation to pay Additional Amounts prior to the required
payment date for the Additional Amounts, and the Additional Amounts Notice
shall
set forth the amount of Additional Amounts to be paid by the Company on such
payment date. The Trustee shall not at any time be under any duty to any
Holder
of Securities to determine the Additional Amounts, or with respect to the
nature, extent or calculation of the amount of Additional Amounts when made,
or
with respect to the method employed in such calculation of the Additional
Amounts.
Section
4.08.
Resale of the Securities. During
the period of two years after the last date of original issuance of the
Securities, the Company shall not, and shall not permit any of its Affiliates
to, resell any of the Securities that constitute “restricted securities” under
Rule 144 under the Securities Act that have been reacquired by any of
them.
ARTICLE
5
Successor
Company
Section
5.01.
When 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 its assets to another
person,
unless:
(a) the
resulting, surviving or transferee person (the “successor
company”)
shall
be a corporation organized and existing under (i) the laws of the United
States
of America, any state thereof or the District of Columbia, or (ii) any other
jurisdiction so long as the successor company agrees to submit to service
of
process in any state in the United States of America or the District of Columbia
and, in the case of clause (ii) above, the successor company provides a full
and
unconditional indemnity and provision for additional amounts for any incremental
amounts required to be withheld from payments or deliveries to Holders or
beneficial owners of the Securities under applicable United States or foreign
laws, rules, regulations or authorities, and any other incremental tax
liabilities or costs of such Holders or beneficial owners as a result of
such
merger or other transaction, and in each case the successor company (if not
the
Company) will expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all of
the Company’s obligations under the Securities and this Indenture;
35
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(c) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5;
and
(d)
the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect
that the Holders or beneficial owners of the Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such
transaction and will be subject to U.S. federal income tax in no greater
amount,
in substantially the same manner and at no earlier times as would have been
the
case if the transaction had not occurred, except where any of the foregoing
are
subject to the indemnification provided for in Section 5.01(a)
above.
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 and its Subsidiaries, taken as a whole, shall be deemed to
be the
transfer of all or substantially all of the properties and assets of the
Company.
The
successor company formed by such consolidation or into which the Company
is
merged or the successor company to which such conveyance, transfer, lease
or
other disposition 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 conveyance, transfer or lease of all
or
substantially all the Company’s assets (in which case the Company will not be
discharged from the obligation to pay the principal amount of the Securities
and
Interest, including Additional Amounts, if any) and except for obligations,
if
any, that the Company may have under a supplemental indenture, 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
company shall enter into a supplemental indenture to evidence the succession
and
substitution of such successor company and such discharge and release of
the
Company.
ARTICLE
6
Defaults
and Remedies
Section
6.01.
Events of Default.
So
long
as any Securities are outstanding, each of the following shall be an
“Event
of Default”:
36
(a) following
the exercise by the Holder of the right to convert a Security in accordance
with
Article 10 hereof, the Company fails to comply with its obligations to deliver
the cash or shares of Common Stock, if any, required to be delivered as part
of
the applicable Settlement Shares or Settlement Amount on the applicable
Conversion Settlement Date;
(b) the
Company defaults in its obligation to provide timely notice of a Fundamental
Change to the Trustee and each Holder as required under Section
3.02(b);
(c) the
Company defaults in the payment of the principal amount of any Security when
due
at maturity, upon repurchase or otherwise (including, without limitation,
upon
the exercise by a Holder of its right to require the Company to repurchase
such
Securities pursuant to and in accordance with Section 3.02 hereof);
(d) the
Company defaults in the payment of any Interest, including Additional Amounts,
if any, when due and payable, and continuance of such default for a period
of 30
days past the applicable due date;
(e) the
Company fails to perform or observe any term, covenant or warranty or agreement
in the Securities or this Indenture (other than those referred to in clause
(a)
through clause (d) above) and such failure continues for 60 days after receipt
by the Company of a Notice of Default;
(f) the
Company fails to make any payment by the end of any applicable grace period
after maturity or acceleration of indebtedness for borrowed money of the
Company
or its Subsidiaries in an amount in excess of $40,000,000 and continuance
of
such failure;
(g) the
Company or any of its Significant Subsidiaries fails to pay final judgments
aggregating in excess of $40,000,000, which judgments are not paid, discharged
or stayed for a period of 60 days;
(h) the
entry
by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any of its Significant Subsidiaries,
in an
involuntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law (any “Bankruptcy
Law”)
or
(ii) a decree or order adjudging the Company or any Significant Subsidiary,
a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the
Company or any Significant Subsidiary, under any applicable Bankruptcy Law,
or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or
other similar official of the Company or any Significant Subsidiary or of
any
substantial part of any of their property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
for
relief or any such other decree or order described in clause (i) or (ii)
above
is unstayed and in effect for a period of 60 consecutive days; and
37
(i) (i)
the
commencement by the Company or any Significant Subsidiary, of a voluntary
case
or proceeding under any applicable Bankruptcy Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or (iv)
the
consent by the Company or any Significant Subsidiary, to the entry of a decree
or order for relief in respect of the Company or any Significant Subsidiary,
in
an involuntary case or proceeding under any applicable Bankruptcy Law or
to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company or any Significant Subsidiary, or (v)
the
filing by the Company or any Significant Subsidiary, of a petition or answer
or
consent seeking reorganization or relief under any applicable Bankruptcy
Law, or
(vi)
the
consent by the Company or any Significant Subsidiary to the filing of such
petition or to the appointment of or the taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Significant Subsidiary or of any substantial part of
any
of their property, or (vii)
the
making by the Company or any Significant Subsidiary, of a general assignment
for
the benefit of creditors, or the admission by the Company or any Significant
Subsidiary, in writing of its inability to pay its debts generally as they
become due.
The
foregoing shall constitute Events of Default whatever the reason for any
such
Event of Default and whether it is voluntary or involuntary or is effected
by
operation of law or pursuant to any judgment, decree or order of any court
or
any order, rule or regulation of any administrative or governmental
body.
For
the
avoidance of doubt, clause (e) above shall not constitute an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding notify
the
Company and the Trustee, of such default and the Company does not cure such
default (and such default is not waived) within the time specified in clause
(e)
above (subject to the provisions of Section 6.01(j) below) after actual receipt
of such notice. Any such notice must specify the default, demand that it
be
remedied and state that such notice is a “Notice
of Default.”
(j) Notwithstanding
anything to the contrary in this Indenture, to the extent elected by the
Company
in its sole discretion, the sole remedy for an Event of Default described
in
clause (e) above relating to the failure to comply with Section 4.02 hereof
or
the failure to comply with Section 314(a)(1) of the TIA, if applicable, will
for
the first 60 days after the occurrence of such an Event of Default consist
exclusively of the right to receive additional interest on the Securities
at an
annual rate equal to 0.25% of the principal amount of the Securities (the
“additional
interest”).
This
additional interest will be in addition to any Additional Amounts on the
Securities that may accrue as a result of a Registration Default (as defined
in
the Registration Rights Agreement) and will be payable on the same dates
and in
the same manner as Interest accruing on the Securities. The additional interest
will accrue on all outstanding Securities from and including the date on
which
an Event of Default relating to the failure to comply with Section 4.02 hereof
or the failure to comply with Section 314(a)(1) of the TIA first
occurs
38
to,
but
not including, the 60th day thereafter (or such earlier date on which the
Event
of Default relating to the failure to comply with Section 4.02 or the failure
to
comply with Section 314(a)(1) of the TIA shall have been cured or waived).
On
such 60th day (or earlier, if the Event of Default relating to the failure
to
comply with Section 4.02 or the failure to comply with Section 314(a)(1)
of the
TIA is cured or waived prior to such 60th day), such additional interest
will
cease to accrue and, if the Event of Default relating to the failure to comply
with Section 4.02 or the failure to comply with Section 314(a)(1) of the
TIA has
not been cured or waived prior to such 60th day, the Securities will be subject
to acceleration as provided in Section 6.02 hereof. The provisions of this
paragraph will not affect the rights of Holders of Securities in the event
of
the occurrence of any other Event of Default. In the event the Company does
not
timely elect to pay the additional interest upon an Event of Default relating
to
the failure to comply with Section 4.02 or the failure to comply with Section
314(a)(1) of the TIA in accordance with this paragraph, the Securities will
be
subject to acceleration as provided in Section 6.02 hereof. To make such
election, the Company must notify the Holders, the Trustee and the Paying
Agent
of such election on or prior to the date such failure to comply with Section
4.02 or the failure to comply with Section 314(a)(1) of the TIA becomes an
Event
of Default.
Section
6.02.
Acceleration.
Subject
to Section 6.01(j), if an Event of Default (other than an Event of Default
specified in Section 6.01(h) or Section 6.01(i) with respect to the Company)
occurs and is continuing (the Event of Default not having been cured or waived),
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 the
Securities and any accrued and unpaid Interest and any accrued and unpaid
Additional Amounts, if any, on all the Securities to be immediately due and
payable. Upon such a declaration, such accelerated amount shall be due and
payable immediately. If an Event of Default specified in Section 6.01(h)or
Section 6.01(i) with respect to the Company occurs and is continuing, the
principal amount of the Securities and any accrued and unpaid Interest and
accrued and unpaid Additional Amounts, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other
act
on the part of the Trustee or any Securityholders. The Holders of a majority
in
aggregate principal amount of the Securities at the time outstanding, by
notice
to the Trustee and the Company (and without notice to any other Securityholder)
may rescind an acceleration and its consequences, and thereby waive the Events
of Default giving rise to such acceleration, if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have
been cured or waived except nonpayment of the principal amount of the Securities
and any accrued and unpaid Interest and any accrued and unpaid Additional
Amounts, if any, that have become due solely as a result of acceleration,
which
amounts, if such rescission is effective, shall no longer be payable as a
result
of acceleration. No such rescission shall affect any subsequent Event of
Default
or impair any right consequent thereto.
39
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 the Securities and
any
accrued and unpaid Interest and accrued and unpaid Additional Amounts, if
any,
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The
Trustee may maintain a proceeding even if the Trustee does not possess any
of
the Securities or does not produce any of the Securities in the proceeding.
A
delay or omission by the Trustee or any 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.
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 to the Trustee (and without notice to any other
Securityholder), may waive any existing or past Default and its consequences
except (1) an Event of Default described in clauses (a), (b), (c) and (d)
of
Section 6.01 or (2) an Event of Default in respect of a provision that under
Section 9.02 cannot be amended without the consent of each Securityholder
affected, which, in each case may be waived only upon the written consent
of
each affected Holder. 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 is unduly prejudicial to the rights of other Securityholders or
would
involve the Trustee in personal liability; provided,
that
the Trustee may take any other action deemed proper by the Trustee which
is not
inconsistent with such direction or this Indenture. Prior to taking any action
under this Indenture, the Trustee may require indemnity satisfactory to it
in
its sole discretion against all losses and expenses caused by taking or not
taking such action.
Section
6.06.
Limitation on Suits.
A
Securityholder may not pursue any remedy with respect to this Indenture or
the
Securities, except in the case of a Default due to the non-payment of the
principal amount of the Securities, any accrued and unpaid Interest, any
accrued
and unpaid Additional Amounts or any unpaid Settlement Amounts or Settlement
Shares, unless:
40
(1) the
Holder gives to the Trustee written notice stating that a Default is
continuing;
(2) 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;
(3) the
Trustee does not comply with the request within 60 days after receipt of
such
notice, request and offer of security or indemnity; and
(4) 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.
Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount of the Securities and any accrued and unpaid
Interest and any accrued and unpaid Additional Amounts, if any, in respect
of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Fundamental Change Repurchase Date, and
to
convert the Securities in accordance with Article 10, or to bring suit for
the
enforcement of any such payment or the right to convert on or after such
respective dates, 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 clauses (a) through (d) (other
than
(b)) 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 or any other obligor upon the Securities
or
the property of the Company or of such other obligor or their creditors,
the
Trustee (irrespective of whether the principal amount of the Securities and
any
accrued and unpaid Interest and accrued and unpaid Additional Amounts, if
any,
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 for the payment of any such amount) shall
be
entitled and empowered, by intervention in such proceeding or
otherwise:
41
(a) to
file
and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest and accrued and unpaid Additional Amounts, if
any,
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 0) 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, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote
in
respect of the claim of any Holder in any such proceeding.
The
Company agrees not to object to the Trustee participating as a member of
any
official committee of creditors of the Company as it deems necessary or
advisable.
Section
6.10.
Priorities.
Any
money
collected by the Trustee pursuant to this Article 6 and, after an Event of
Default, any money or other property distributable in respect of the Company’s
obligations under this Indenture, shall be paid out in the following
order:
FIRST:
to
the Trustee (including any predecessor Trustee) for amounts due under Section
7.07;
SECOND:
to Securityholders for amounts due and unpaid on the Securities for the
principal amount of the Securities and any accrued and unpaid Interest and
accrued and unpaid Additional Amounts, if any, 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.
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
42
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 shall
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 the principal amount
of
the Securities and any accrued and unpaid Interest and accrued and unpaid
Additional Amounts, if any, on 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 lawfully do so) hereby expressly waives all benefit
or
advantage of any such law, and covenants that it shall not hinder, delay
or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law
had
been enacted.
ARTICLE
7
Trustee
Section
7.01.
Duties of Trustee.
(a) If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture and use the same
degree
of care and skill in their exercise as a prudent 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:
(1)
|
the
Trustee need perform only those duties that are specifically set
forth in
this Indenture and no others, and no implied duties shall be read
into
this Indenture against the Trustee;
and
|
43
(2)
|
in
the absence of bad faith on its part, the Trustee may conclusively
rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee
and conforming to the requirements of this Indenture, but in the
case of
any such certificates or opinions which by any provision hereof
are
specifically required to be furnished to the Trustee, the Trustee
shall be
under a duty to examine such 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 315(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:
(1)
|
this
Section 7.01(c) does not limit the effect of Sections 7.01(b) and
7.01(g);
|
(2)
|
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
|
(3)
|
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.
|
Subparagraphs
(c)0, 0 and 0 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
this 0.
(e) The
Trustee may refuse to perform any duty or exercise any right or power 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 (provided that
any
interest earned on money held by the Trustee in trust hereunder shall be
the
property of the Company).
44
(g) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
Section
7.02.
Rights of Trustee.
Subject
to the
provisions of Section 7.01:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document (whether in original
or
facsimile form) 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, in the absence of bad faith on its part, conclusively rely
upon
an Officer’s Certificate;
(c) the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of
any
agent or attorney appointed with due care by it hereunder;
(d) the
Trustee shall not be liable for any action taken, suffered, or omitted to
be
taken by it in good faith which it 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
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of 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 Request or Company Order
45
and
any
resolution of the Board of Directors may 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 to, during regular
business hours, 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) Except
with respect to Section 4.01, the Trustee shall have no duty to inquire as
to
the performance of the Company with respect to the covenants contained in
Article 4. In addition, the Trustee shall not be deemed to have knowledge
of an
Event of Default except (i) any Default or Event of Default occurring pursuant
to Section
6.01(a),
6.01(c)
or 6.01(d) or (ii) any Default or Event of Default of which the Trustee shall
have received written notification from the Company or the Holders of at
least
25% in aggregate principal amount of the Securities or obtained actual
knowledge;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended
to, and
shall be enforceable by, the Trustee in each of its capacities hereunder,
and to
each agent, custodian and other person employed to act hereunder;
(k) the
Trustee may request that the Company deliver an Officer’s 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 Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded; and
(l) the
permissive rights of the Trustee to take certain actions under this Indenture
shall not be construed as a duty unless so specified herein.
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, Bid
46
Solicitation
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Section 7.10 and Section 7.11.
Section
7.04.
Trustee’s Disclaimer.
The
Trustee makes no representation as to, and shall have no responsibility for,
the
validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company’s use or application by the Company of the
Securities or of the proceeds from the Securities, it shall not be responsible
for the correctness of any statement in the 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 or Event of Default occurs and if it is known to the Trustee, the
Trustee shall give to each Securityholder notice of the Default or Event
of
Default within 90 days after it occurs, unless such Default or Event of Default
shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default or
Event
of Default described in clauses (c) and (d) of Section 6.01, 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 interest of the
Securityholders. The preceding sentence 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. The Trustee shall not be deemed
to have
knowledge of a Default or Event of Default unless a Responsible Officer of
the
Trustee has received written notice of such Default or Event of Default,
which
notice specifically references this Indenture and the Securities.
Section
7.06.
Reports by Trustee to Holders.
Within
60
days after each December 31 beginning with December 31, 2007, the Trustee
shall
mail to each Securityholder a brief report dated as of such December 31 that
complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
Any
reports required by this Section 7.06 shall be transmitted by mail to
Securityholders pursuant to TIA Section 313(c).
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 whenever the
Securities become listed on any securities exchange and of any delisting
thereof.
Section
7.07. Compensation
and Indemnity.
The
Company agrees:
(a) to
pay to
the Trustee from time to time 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);
47
(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 (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 own negligence,
willful misconduct or bad faith; and
(c) to
indemnify and hold the Trustee and its directors, officers, agents and employees
(collectively, the “Indemnitees”)
harmless from and against any and all claims, liabilities, losses, damages,
fines, penalties and expenses, including out-of-pocket, incidental expenses,
legal fees and expenses and the allocated costs and expenses of in-house
counsel
and legal staff (“Losses”)
that
may be imposed on, incurred by or asserted against the Indemnitees or any
of
them for following any instruction or other direction upon which the Trustee
is
authorized to rely pursuant to the terms of this Indenture. In addition to
and
not in limitation of the immediately preceding sentence, the Company also
agrees
to indemnify and hold the Indemnitees and each of them harmless from and
against
any and all Losses that may be imposed on, incurred by or asserted against
the
Indemnitees or any of them in connection with or arising out of the Trustee’s
performance under this Indenture, provided
the
Trustee has not acted with negligence or engaged in willful
misconduct.
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 the principal amount of, or the
Fundamental Change Repurchase Price, Interest or Additional Amounts, if any,
as
the case may be, on particular Securities.
The
Company’s payment, reimbursement and indemnity obligations pursuant to this
Section 7.07 shall survive the satisfaction and discharge of this Indenture,
the
resignation or removal of the Trustee and the termination of this Indenture
for
any reason. In addition to and without prejudice to its rights hereunder,
when
the Trustee incurs expenses or renders services in connection with an Event
of
Default specified in Section 6.01(h) or Section 6.01(i), the expenses, including
the reasonable charges and expenses of its counsel and the compensation for
services payable pursuant to Section 7.07(a), are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or similar laws.
For
the
purposes of this Section 7.07, the “Trustee” shall include any predecessor
Trustee; provided, however, that except as may be otherwise agreed among
the
parties, the negligence, willful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
48
Section
7.08.
Replacement of Trustee.
The
Trustee may resign at any time 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 in writing. The Company
shall remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10;
(2) the
Trustee is adjudged bankrupt or insolvent;
(3) a
receiver or public officer takes charge of the Trustee or its property;
or
(4) 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
resigns 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.
So
long
as no Default or Event of Default shall have occurred and be continuing,
if the
Company shall have delivered to the Trustee (i) a Board Resolution appointing
a
successor Trustee, effective as of a date at least 30 days after delivery
of
such Resolution to the Trustee, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee in accordance
with this Indenture, the Trustee shall be deemed to have resigned as
contemplated in this Section 7.08, the successor Trustee shall be deemed
to have
been accepted as contemplated in this Indenture, all as of such
date,
49
and
all
other provisions of this Indenture shall be applicable to such resignation,
appointment and acceptance.
Section
7.09.
Successor Trustee by Xxxxxx.
Any
corporation or association into which the Trustee in its individual capacity
may
be merged or converted or with which it may be consolidated or to which it
transfers all or substantially all of its corporate trust business or assets,
or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee in its individual capacity may be sold
or
otherwise transferred, shall be the Trustee hereunder without further
act.
Section
7.10.
Eligibility; Disqualification.
The
Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1)
and 310(b). The Trustee (or any 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 Commission the application referred to in the
penultimate paragraph of TIA Section 310(b).
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
8
Discharge
of Indenture
Section
8.01.
Discharge of Liability on Securities.
When
(i)
the Company causes to be delivered to the Trustee all outstanding Securities
(other than Securities replaced or repaid pursuant to Section 2.07) for
cancellation or (ii) all outstanding Securities have become due and payable
(whether on conversion, maturity, repurchase or otherwise) and the Company
deposits with the Trustee cash and, if applicable, shares of Common Stock
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 of the
Company accompanied by an Officer’s Certificate and Opinion of Counsel and at
the cost and expense of the Company.
Section
8.02.
Repayment to the Company.
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 one year, subject to applicable
abandoned property law.
50
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 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.
Section
8.03.
Application of Trust Money. The
Trustee shall hold in trust all money and other consideration deposited with
it
pursuant to Section 8.01 and shall apply such deposited money and other
consideration through the Paying Agent and in accordance with this Indenture
to
the payment of amounts due on the Securities. Money and other consideration
so
held in trust is subject to the Trustee’s rights under Section
7.07.
ARTICLE
9
Amendments
Section
9.01.
Without Consent of Holders.
The
Company and the Trustee may modify or amend this Indenture or the Securities
without the consent of any Securityholder to:
(a) add
guarantees with respect to the Securities or secure the Securities;
(b) conform,
as necessary, this Indenture and the Securities to the “Description of Notes” as
set forth in the Offering Memorandum;
(c) add
to
the covenants of the Company or Events of Default for the benefit of the
Holders
of Securities;
(d) surrender
any right or power herein conferred upon the Company;
(e) provide
for the assumption by a successor company of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer, sale or lease pursuant to Article 5 or Section 10.06 hereof;
(f) comply
with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture or any supplemental indenture under the TIA;
(g) cure
any
ambiguity or to correct or supplement any provision herein which may be
inconsistent with any other provision herein;
(h) make
other changes to this Indenture or forms or terms of the Securities so long
as
no such change individually or in the aggregate with
51
all
other
such changes has or will have a material adverse effect on the interests
of the
Holders of the Securities;
(i) establish
the form of Securities (substantially in the form of Exhibit B);
(j) evidence
and provide for the acceptance of the appointment under this Indenture of
a
successor Trustee in accordance with the terms of this Indenture;
or
(k) provide
for uncertificated Securities in addition to or in place of certificated
Securities; provided,
however,
that
the uncertificated Securities are issued in registered form for purposes
of
Section 163(f) of the Code, or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code.
Section
9.02.
With Consent of Holders.
Except
as
provided below in this Section 9.02 and in Section 9.01, this Indenture or
the
Securities may be amended, modified or supplemented, and noncompliance in
any
particular instance with any provision of this Indenture or the Securities
may
be waived, in each case with the written consent of the Holders of at least
a
majority of the principal amount of the Securities at the time
outstanding.
Without
the written consent or the affirmative vote of each Holder of Securities
affected thereby, an amendment, supplement or waiver under this Section 9.02
may
not:
(a) reduce
the principal amount of or change the Stated Maturity of any
Security;
(b) reduce
the Fundamental Change Repurchase Price or change the time at which or
circumstances under which the Securities may or shall be repurchased;
(c) change
the currency in which any Security or Interest, including Additional Amounts,
if
any, thereon, or the Fundamental Change Repurchase Price thereof is payable;
(d) reduce
the rate of accrual for, or extend the time for payment of Interest, including
Additional Amounts, if any, on any Security;
(e) impair
the right of any Holder to institute suit for the enforcement of any payment
on
or with respect to any Security;
(f) impair
the right of the Holders of the Securities to convert any Security as provided
in Article 10 or reduce the number of shares or
52
other
consideration due upon conversion, except as otherwise permitted pursuant
to
Article 5 or Section 10.06 hereof;
(g) change
the Company’s obligation to maintain an office or agency in the places and for
the purposes specified in this Indenture;
(h) amend
or
modify any of the provisions of this Section, or reduce the percentage of
the
aggregate principal amount of outstanding Securities required to amend, modify,
supplement or waive a provision of the Indenture or the Securities, except
to
provide that certain other provisions of this Indenture cannot be modified
or
waived without the consent of the Holder of each outstanding Security affected
thereby; or
(i) reduce
the percentage of the aggregate principal amount of the outstanding Securities
the consent of whose Holders is required for any such supplemental indenture
entered into in accordance with this Section 9.02 or the consent of whose
Holders is required for any waiver provided for in this Indenture.
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, 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.
Section
9.03.
Compliance With Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article shall comply with
the
TIA as then in effect.
Section
9.04.
Revocation and Effect of Consents, Waivers and Actions.
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 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.
Notice of Amendments, Notation on or Exchange of Securities.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 may, and shall if required by the Company, bear
a
notation in form approved by the Company as to any matter provided for in
such
supplemental indenture. If the Company shall so determine,
53
new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, 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 9 if the amendment contained therein does not 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 Officer’s Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section
9.07.
Effect of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article, this Indenture
shall
be modified in accordance therewith, and such supplemental indenture shall
form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be
bound
thereby.
ARTICLE
10
Conversions
Section
10.01.
Conversion Privilege. (a)
Subject to and upon compliance with the provisions of this Article 10, a
Holder
of a Security shall have the right, at such Holder’s option, to convert all or
any portion (if the portion to be converted is $1,000 principal amount or
an
integral multiple thereof) of such Security prior to the close of business
on
the second Business Day immediately preceding Stated Maturity into cash and
shares of Common Stock, if applicable, based on the Applicable Conversion
Rate
only as follows:
(1) before
November 15, 2013, during any fiscal quarter of the Company (a “Fiscal
Quarter”)
commencing after May 5, 2007 (and only during such Fiscal Quarter), if the
Closing Sale Price of the Common Stock for at least 20 Trading Days during
the
period of 30 consecutive Trading Days ending on the last Trading Day of the
immediately preceding Fiscal Quarter is more than 130% of the Applicable
Conversion Price in effect on such last Trading Day;
(2) during
the five Business Days immediately following any five consecutive Trading
Day
period (the “Measurement
Period”)
in
which the Trading Price per $1,000 original principal amount of the Securities
(as determined following a request by a Holder of the Securities in accordance
with the procedures described below) for each day of such Measurement Period
was
less than 98% of the
54
product
of the Closing Sale Price of the Common Stock and the Applicable Conversion
Rate
on each such day. The Trustee or another party appointed by the Trustee will,
on
the Company’s behalf, determine if the Securities are convertible as a result of
the Trading Price of the Securities and notify the Company and the Trustee
if
the Trustee has appointed another party to determine if the Securities are
convertible pursuant to this clause (2); provided,
that
the Trustee or such other person appointed by the Trustee shall have no
obligation to determine the Trading Price of the Securities unless the Company
has requested such determination and the Company shall have no obligation
to
make such request unless requested to do so in writing by a Holder of the
Security. Upon making any such request, any such requesting Holder shall
provide
reasonable evidence that (A) such requesting Holder is a Holder of the Security
as of the date of such notice, and (B) the Trading Price per $1,000 principal
amount of Securities would be less than 98% of the product of the Closing
Sale
Price of the Common Stock and the Applicable Conversion Rate on that day.
At
such time, the Company shall instruct the Trustee to determine the Trading
Price
of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 original principal amount
of the
Securities is greater than or equal to 98% of the product of the Closing
Sale
Price of the Common Stock and the Applicable Conversion Rate;
(3) any
time
on or after November 15, 2013 and prior to the close of business on the second
Business Day immediately preceding Stated Maturity;
(4) as
provided in clause (b) of this Section 10.01.
The
Company or, if applicable, the Conversion Agent (in the case of a conversion
pursuant to clause (1) above) or the Trustee (in the case of a conversion
pursuant to clause (2) above) on behalf of the Company, shall determine on
a
daily basis during the time periods specified in Section 10.01(a)(1) or,
following a request by a Holder of Securities in accordance with the procedures
specified in Section 10.01(a)(2), whether the Securities shall be convertible
as
a result of the occurrence of an event specified in such Sections and, if
the
Securities shall be so convertible, the Company, the Conversion Agent or
the
Trustee, as applicable, shall promptly deliver to the Conversion Agent, the
Trustee or the Company, as applicable, written notice thereof. Whenever the
Securities shall become convertible pursuant to this Section 10.01 (as
determined in accordance with this Section 10.01), the Company or, at the
Company’s request, the Trustee in the name and at the expense of the Company,
shall promptly notify the Holders of the event triggering such convertibility
in
the manner provided in Section 11.02, or the Company shall promptly disseminate
a press release and use its reasonable efforts
55
to
post
the information on its website or otherwise publicly disclose the information.
Any notice so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice.
(b) In
the
event that:
(1) (A)
the
Company distributes to all or substantially all holders of Common Stock rights
or warrants entitling them to purchase, for a period expiring within 60 days
after the date of such distribution, Common Stock at less than the average
of
the Closing Sale Prices of the Common Stock for the five consecutive Trading
Days ending on the Trading Day immediately preceding the public announcement
date for such distribution; or (B) the Company distributes to all or
substantially all holders of Common Stock cash, debt securities, rights or
warrants to purchase the Company’s securities, or other assets (excluding
dividends or distributions described in Section 10.04(a)), which distribution
has a per share value as determined by the Board of Directors exceeding 10%
of
the average of the Closing Sale Prices of the Common Stock for the five
consecutive Trading Days ending on the Trading Day immediately preceding
the
public announcement date of such distribution, then, in either case, the
Securities may be surrendered for conversion at any time on and after the
date
that the Company gives notice to the Holders of such distribution, which
shall
be not less than 30 calendar days prior to the Ex-Dividend Date for such
distribution, until the earlier of the close of business on the Business
Day
immediately preceding the Ex-Dividend Date for such distribution or the date
on
which the Company announces that such distribution shall not take place,
even if
the Securities are not otherwise convertible at such time; provided
that no
Holder of a Security shall have the right to convert its Securities if the
Holder is entitled to participate in such distribution (based on the Applicable
Conversion Rate) without conversion; or
(2) a
Fundamental Change occurs prior to Stated Maturity (regardless of whether
Holders have a right to require the Company to repurchase the Securities
upon
such Fundamental Change as set forth in Article 3), then the Securities may
be
surrendered for conversion at any time from and after the date that is 30
calendar days prior to the anticipated effective date of such transaction
until
and including the date that is 30 calendar days after the actual effective
date
of such transaction (or, if such transaction also constitutes a Fundamental
Change pursuant to which Holders have a right to require the Company to
repurchase the Securities pursuant to Section 3.02, until the close of business
on the Business Day immediately preceding the applicable Fundamental Change
Repurchase Date). The Company
56
shall
notify Holders and the Trustee as promptly as practicable following the date
that it publicly announces the Fundamental Change transaction giving rise
to the
above conversion right (but in no event less than 30 calendar days prior
to the
anticipated effective date of such transaction).
(c) If
a
Fundamental Change occurs prior to Stated Maturity and a Holder elects to
convert its Securities in connection with such Fundamental Change (regardless
of
whether such Holder has the right to require the Company to repurchase its
Securities as set forth in Article 3), the Applicable Conversion Rate shall
be
increased by an additional number of shares of Common Stock (the “Additional
Shares”)
as
described below; provided
that if
the Stock Price paid in connection with such Fundamental Change is greater
than
$45.00 or less than $12.71 (subject in each case to adjustment as described
below), no Additional Shares shall be added to the Applicable Conversion
Rate. A
conversion of the Securities will be deemed for these purposes to be “in
connection with” a Fundamental Change if the Conversion Notice is received by
the Conversion Agent from and including the date that is 30 calendar days
prior
to the anticipated effective date of the Fundamental Change to the close
of
business on the date that is 30 calendar days after the actual effective
date of
the Fundamental Change (or, if such transaction also constitutes a Fundamental
Change pursuant to which Holders have a right to require the Company to
repurchase the Securities pursuant to Section 3.02, until the close of business
on the Business Day immediately preceding the applicable Fundamental Change
Repurchase Date).
The
number of Additional Shares to be added to the Applicable Conversion Rate
as
described in the immediately preceding paragraph shall be determined by
reference to the table attached as Schedule I hereto, based on the effective
date of such Fundamental Change transaction and the Stock Price paid in
connection with such transaction; provided
that if
the Stock Price is between two Stock Price amounts in the table or such
effective date is between two effective dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock
Price
amounts and the two dates, as applicable, based on a 365-day year. The
“effective
date”
with
respect to a Fundamental Change transaction means the date that a Fundamental
Change becomes effective.
The
Stock
Prices set forth in the first row of the table in Schedule I hereto shall
be
adjusted as of any date on which the Applicable Conversion Rate of the
Securities is adjusted pursuant to Section 10.04. The adjusted Stock Prices
shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Applicable Conversion
Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Applicable Conversion Rate
as so
adjusted. The number of Additional Shares shall be adjusted in the same manner
as the Applicable Conversion Rate as set forth in Section 10.04.
57
Notwithstanding
the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion of the Securities pursuant to this clause (c) exceed
78.6782 per $1,000 principal amount of Securities, nor shall the amount of
Additional Shares exceed 13.6549 per $1,000 principal amount of Securities,
in
each case, subject to adjustments in the same manner as the Applicable
Conversion Rate as set forth in Section 10.04.
Section
10.02.
Conversion Procedure; Applicable Conversion Rate; Fractional
Shares. (a)
Subject
to the Company’s rights under Section 10.01 and Section 10.03, each Security
shall be convertible at the office of the Conversion Agent into a combination
of
cash and fully paid and nonassessable shares (calculated to the nearest
1/10,000th of a share) of Common Stock, if any, at a rate (the “Applicable
Conversion Rate”)
equal
to, initially, 65.0233 shares of Common Stock for each $1,000 principal amount
of Securities. The Applicable Conversion Rate shall be adjusted in certain
instances as provided in Section 10.04 hereof, but shall not be adjusted
for any
accrued and unpaid Interest or Additional Amounts, if any. Upon conversion,
no
payment shall be made by the Company with respect to any accrued and unpaid
Interest, including Additional Amounts, if any, unless, as described below,
such
conversion occurs between an Interest Record Date and the Interest Payment
Date
to which such Interest Record Date relates, in which case the Holders of
the
Securities on the Interest Record Date shall receive accrued and unpaid
interest, including Additional Amounts, if any, payable on the Securities
on the
applicable Interest Payment Date. Instead, such amount shall be deemed paid
by
the applicable Settlement Amount or Settlement Shares, as applicable, delivered
upon conversion of any Security. In addition, no payment shall be made in
respect of dividends on the Common Stock with a record date prior to the
Conversion Date. The Company shall not issue any fraction of a share of Common
Stock in connection with any conversion of Securities, but instead shall,
subject to Section 10.03 hereof, make a cash payment (calculated to the nearest
cent) equal to such fraction multiplied by the Daily VWAP on the final Trading
Day of the Cash Settlement Averaging Period or, if the Company has made a
valid
Physical Settlement Election, on the third Scheduled Trading Day before the
Conversion Settlement Date.
(b) At
any
time before November 15, 2013, the Company may irrevocably make a Physical
Settlement Election as set forth in Section 10.03(b).
(c) Before
any Holder of a Security shall be entitled to convert the same, such Holder
shall (1) in the case of Global Securities, comply with the procedures of
the
Depositary in effect at that time for converting a beneficial interest in
a
Global Security, and in the case of Certificated Securities, surrender such
Securities, duly endorsed to the Company or in blank, at the office of the
Conversion Agent, and (2) give written notice to the Company in the form
on the
reverse of such Certificated Security (the “Conversion
Notice”)
at
said office or place that such Holder elects to convert the same and shall
state
in writing therein the principal amount of Securities to be converted (which
shall be equal to or an
58
integral
multiple of $1,000 principal amount) and the name or names (with addresses)
in
which such Holder wishes the certificate or certificates for Common Stock
included in the Settlement Amount, if any, or Settlement Shares, as applicable,
to be registered.
Before
any such conversion, a Holder also shall pay all taxes or duties, if any,
as
provided in Section 10.07 and any amount payable pursuant to Section
10.02(h).
If
more
than one Security shall be surrendered for conversion at one time by the
same
Holder, the number of full shares of Common Stock, if any, that shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the
extent
permitted thereby) so surrendered.
(d) A
Security shall be deemed to have been converted as of the close of business
on
the date (the “Conversion
Date”)
that
the Holder has complied with Section 10.02(c).
(e) The
Company shall, on the Conversion Settlement Date, to the extent applicable
as
set forth in Section 10.03, (i) pay the cash component (including cash in
lieu
of any fraction of a share to which such Holder would otherwise be entitled)
of
the Conversion Obligation determined pursuant to Section 10.03 to the Holder
of
a Security surrendered for conversion, or such Holder’s nominee or nominees, and
(ii) issue, or cause to be issued, and deliver to the Conversion Agent or
to
such Holder, or such Holder’s nominee or nominees, certificates for the number
of full shares of Common Stock, if any, to which such Holder shall be entitled
as part of such Conversion Obligation. The Company shall not be required
to
deliver certificates for shares of Common Stock while the stock transfer
books
for such stock or the security register are duly closed for any purpose,
but
certificates for shares of Common Stock shall be issued and delivered as
soon as
practicable after the opening of such books or security register, and the
person
or persons entitled to receive the Common Stock as part of the applicable
Settlement Amount or Settlement Shares, as applicable, upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common
Stock, as of the close of business on the applicable Conversion Settlement
Date.
(f) In
case
any Security shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written
order of the Holder of the Security so surrendered, without charge to such
Holder (subject to the provisions of Section 10.07 hereof), a new Security
or
Securities in authorized denominations in an aggregate principal amount equal
to
the unconverted portion of the surrendered Securities.
(g) By
delivering the combination of cash and shares of Common Stock, if any, together
with a cash payment in lieu of any fractional shares to the Conversion Agent
or
to the Holder or such Holder’s nominee or nominees, the
59
Company
shall have satisfied in full its Conversion Obligation with respect to such
Security, and upon such delivery, accrued and unpaid Interest, if any, and
Additional Amounts, if any, with respect to such Security shall be deemed
to be
paid in full rather than canceled, extinguished or forfeited, and such amounts
shall no longer accrue.
(h) If
a
Securityholder delivers a Conversion Notice after the Interest Record Date
for a
payment of Interest (including Additional Amounts, if any) but prior to the
corresponding Interest Payment Date, such Securityholder must pay to the
Company, at the time such Securityholder surrenders Securities for conversion,
an amount equal to the Interest (including Additional Amounts, if any), that
has
accrued and shall be paid on the related Interest Payment Date. The preceding
sentence shall not apply if (1) the Company has specified a Fundamental Change
Repurchase Date that is after the close of business on an Interest Record
Date
but on or prior to the corresponding Interest Payment Date, (2) to the extent
of
overdue Interest (and any overdue Additional Amounts), if any overdue Interest
(and any overdue Additional Amounts) exists at the time of conversion with
respect to the Securities converted or (3) if a Holder converts its Securities
after the close of business on or after November 15, 2013.
Section
10.03.
Payment Upon Conversion. (a)
In
the event that the Company has not made a Physical Settlement Election as
set
forth in clause (b) below, upon conversion of Securities, the Company shall
satisfy its obligation to convert the Securities (the “Conversion
Obligation”)
by
delivering to Holders surrendering Securities for conversion, for each $1,000
principal amount of Securities, a settlement amount (the “Settlement
Amount”)
equal
to the sum of the Daily Settlement Amounts for each of the 50 consecutive
Trading days of the related Cash Settlement Averaging Period.
(i) The
“Daily
Settlement Amount”
for
each of the 50 consecutive Trading Days of the related Cash Settlement Averaging
Period, shall consist of:
(A) cash
equal to the lesser of $20 and the Daily Conversion Value on such Trading
Day;
and
(B) to
the
extent the Daily Conversion Value on such Trading Day exceeds $20, a number
of
shares of Common Stock equal to (x) the difference between such Daily Conversion
Value and $20 (such difference being referred to as the “Daily
Excess Amount”),
divided by (y) the Daily VWAP for such day (or the consideration into which
the
Common Stock has been converted as described in
Section
10.06); provided
that
no
fractional shares shall be issued, and in lieu thereof, the Company shall
pay an
amount in cash as set forth in Section 10.02 above.
60
(ii)
The
Settlement Amount will be delivered on the Conversion Settlement
Date.
(b) At
any
time before November 15, 2013, the Company may irrevocably make a Physical
Settlement Election, in its sole discretion and without the consent of the
Holders, by valid delivery of a Physical Settlement Notice, to satisfy all
Conversion Obligations arising out of conversions of Securities after the
Physical Settlement Election Date. In addition to the giving of such Physical
Settlement Election Notice, the Company shall disseminate a press release
through Dow Xxxxx & Company, Inc. or Bloomberg Business News or another
newswire service announcing such Physical Settlement Election or publish
such
information in The Wall Street Journal or another newspaper of general
circulation in the City of New York or on the Company’s website. Upon any such
conversion following a valid Physical Settlement Election and the related
Physical Settlement Date, the Company shall, subject to the provisions of
this
Article 10, satisfy its Conversion Obligation by delivering to converting
Holders on the Conversion Settlement Date
a number
of shares of Common Stock (the “Settlement
Shares”)
equal
to the aggregate principal amount of Securities to be converted divided by
$1,000 and multiplied by the Applicable Conversion Rate on the Conversion
Date
(which will include any increases to reflect any Additional Shares as described
under Section 10.01(c) above); provided
that
no
fractional shares shall be issued, and in lieu thereof, the Company shall
pay an
amount in cash as set forth in Section 10.02 above.
Section
10.04.
Adjustment of Applicable Conversion Rate. The
Applicable Conversion Rate shall be adjusted, without duplication, from time
to
time by the Company in accordance with this Section
10.04, except that the Company will not make any adjustment if Holders of
Securities are entitled to participate on the relevant distribution or payment
date, as a result of holding the Securities, in the transactions described
in
Sections Section 10.04(b), Section 10.04(c) and Section 10.04(d) below without
having to convert their Securities (based on the Applicable Conversion Rate
in
effect immediately before the relevant Ex-Dividend Date):
(a) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, issues shares of Common Stock as a dividend or distribution
on
shares of Common Stock, or if the Company effects a share split or share
combination, then the Applicable Conversion Rate will be adjusted based on
the
following formula:
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic61.jpg)
61
where
CR0
|
=
|
the
Applicable Conversion Rate in effect immediately prior to the Ex-Dividend
Date of such dividend or distribution, or the effective date of
such share
split or share combination, as applicable;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date or effective date of such share split or combination, as
applicable;
|
OS0
|
=
|
the
number of shares of Common Stock outstanding immediately before
such
Ex-Dividend Date or effective date; and
|
OS'
|
=
|
the
number of shares of Common Stock outstanding immediately before
such
Ex-Dividend Date or effective date, but after giving effect to
such
dividend, distribution, share split or combination, as
applicable.
|
Such
adjustment shall become effective immediately after the Ex-Dividend Date
for
such dividend or distribution, or the effective date for such share split
or
share combination. If any dividend or distribution of the type described
in this
Section 10.04(a) is declared but not so paid or made, the Applicable Conversion
Rate shall again be adjusted, as of the date that is the earlier of (i) the
public announcement of the non-payment of the dividend or distribution and
(ii)
the date that the dividend or distribution was to be paid, to the Applicable
Conversion Rate which would then be in effect if such dividend or distribution
had not been declared.
(b) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, issues to all holders of Common Stock any rights, warrants or
options entitling them for a period of not more than 60 calendar days from
the
date of issuance of such rights, warrants or options to subscribe for or
purchase shares of Common Stock at an exercise price per share of Common
Stock
less than the average of the Closing Sales Prices of Common Stock for the
10
consecutive Trading Day period ending on the Business Day immediately preceding
the date of announcement of such issuance, the Applicable Conversion Rate
shall
be adjusted based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic62.jpg)
62
where
CR0
|
=
|
the
Applicable Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such issuance;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date;
|
OS0
|
=
|
the
number of shares of Common Stock outstanding immediately before
such
Ex-Dividend Date for such issuance;
|
X
|
=
|
the
total number of shares of Common Stock issuable pursuant to such
rights,
warrants or options; and
|
Y
|
=
|
the
number of shares of Common Stock equal to the quotient of (A) the
aggregate price payable to exercise such rights, warrants or options
divided by (B) the average of the Closing Sale Prices of Common
Stock for
the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the date of announcement of the issuance
of such
rights, warrants or options.
|
To
the
extent such rights, warrants or options are not exercised or converted prior
to
the expiration of the exercisability or convertability thereof, the Applicable
Conversion Rate shall be readjusted, as of such expiration date, to the
Applicable Conversion Rate which would then be in effect had the adjustments
made upon the issuance of such rights, warrants or options been made on the
basis of the delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights, warrants or options are not so
issued,
the Conversion Rate shall again be adjusted to be the Applicable Conversion Rate
which would then be in effect if such rights, warrants or options had not
been
issued. In determining whether any rights, warrants or options entitle the
Holders to subscribe for or purchase shares of Common Stock at less than
the
average of the Closing Sale Prices of Common Stock for the 10 consecutive
Trading Day period ending on the Business Day immediately preceding the date
of
announcement of such issuance, and in determining the aggregate offering
price
of such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such
consideration, if other than cash, as shall be determined in good faith by
the
Board of Directors of the Company.
(c) If
the
Company, at any time or from time to time while the Securities are outstanding,
distributes shares of any class of Capital Stock of the Company, evidences
of
indebtedness or other assets or property of the Company to all, or substantially
all, holders of its Common Stock, excluding:
63
(i) dividends
or distributions referred to in Section 10.04(a);
(ii) rights,
warrants or options referred to in Section 10.04(b);
(iii) dividends
or distributions paid exclusively in cash; and
(iv) Spin-Offs
(as defined below) to which the provisions set forth below in this Section
10.04(c) shall apply;
then
the
Conversion Rate will be adjusted based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic64.jpg)
where
CR0
|
=
|
the
Applicable Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such distribution;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date for such distribution;
|
SP0
|
=
|
the
average of the Closing Sale Prices of the Common Stock over the
10
consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and
|
FMV
|
=
|
the
Fair Market Value (as determined in good faith by the Board of
Directors
of the Company) of the shares of Capital Stock, evidences of indebtedness,
assets or property distributed with respect to each outstanding
share of
the Common Stock on the earlier of the Record Date or the Ex-Dividend
Date
for such distribution.
|
Such
adjustment shall become effective immediately prior to the opening of business
on the day following the Ex-Dividend Date for such distribution.
Where
there has been a payment of a dividend or other distribution on the Common
Stock
of shares of Capital Stock of any class or series, or similar equity interest,
of or relating to a Subsidiary or other business unit (a “Spin-Off”),
the
Applicable Conversion Rate in effect immediately before 5:00 p.m., New York
City
time, on the 10th Trading Day immediately following the effective date of
the
Spin-Off shall be increased based on the following formula:
64
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic65.jpg)
where
CR0
|
=
|
the
Applicable Conversion Rate in effect on the 10th Trading Day immediately
following, and including, the effective date of the Spin-Off;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after the 10th
Trading
Day immediately following, and including, the effective date of
the
Spin-Off;
|
FMV0
|
=
|
the
average of the Closing Sale Prices of the Capital Stock or similar
equity
interest distributed to holders of Common Stock applicable to one
share of
Common Stock over the first 10 consecutive Trading Day period after,
and
including, the effective date of the Spin-Off; and
|
MP0
|
=
|
the
average of the Closing Sale Prices of Common Stock over the first
10
consecutive Trading Day period after the effective date of the
Spin-Off.
|
The
adjustment to the Applicable Conversion Rate under the preceding paragraph
will
occur on the 10th Trading Day from, and including, the effective date of
the
Spin-Off; provided
that in
respect of any conversion within the 10 Trading Days following the effective
date of any Spin-Off, references within this Section 10.04(c) to “10 Trading
Days” shall be deemed replaced with such lesser number of Trading Days as have
elapsed between the effective date of such Spin-Off and the Conversion Date
in
determining the Applicable Conversion Rate.
If
any
dividend or distribution described in this Section 10.04(c) is declared but
not
paid or made, the Applicable Conversion Rate shall be readjusted, as of the
date
that is the earlier of (i) the public announcement of the non-payment of
the
dividend or distribution and (ii) the date that the dividend or distribution
was
to have been paid, in which case, the Applicable Conversion Rate will be
the
Applicable Conversion Rate that would then be in effect if such dividend
or
distribution had not been declared.
For
the
purposes of this Section 10.04(c), rights, warrants or options distributed
by
the Company to all holders of Common Stock entitling them to subscribe for
or
purchase shares of the Company’s capital stock (either initially or under
certain circumstances), which rights, warrants or options until the occurrence
of a specified event or events (a “Trigger
Event”):
(1)
are deemed to be transferred with such shares of Common Stock; (2) are not
65
exercisable;
and (3) are also issued in respect of future issuances of Common Stock, shall
be
deemed not to have been distributed for purposes of this Section 10.04(c),
(and
no adjustment to the Conversion Rate under this Section 10.04(c) will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under
this
Section 10.04(c). If any such right, warrant or option, including any such
existing rights, warrants or options distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights,
warrants or options become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence
of
any and each such event shall be deemed to be the date of distribution and
record date with respect to new rights, warrants or options with such rights
(and a termination or expiration of the existing rights, warrants or options
without exercise by any of the holders thereof). In addition, in the event
of
any distribution (or deemed distribution) of rights, warrants or options
or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Applicable Conversion Rate under this
Section 10.04(c) was made, (1) in the case of any such rights, warrants or
options which shall all have been redeemed or purchased without exercise
by any
Holders thereof, the Applicable Conversion Rate shall be readjusted upon
such
final purchase to give effect to such distribution or Trigger Event, as the
case
may be, as though it were a cash distribution, equal to the per share redemption
or purchase price received by a holder of Common Stock with respect to such
rights, warrants or options (assuming such holder had retained such rights,
warrants or options), made to all applicable holders of Common Stock as of
the
date of such redemption or purchase, and (2) in the case of such rights,
warrants or options which shall have expired or been terminated without exercise
by any holders thereof, the Applicable Conversion Rate shall be readjusted
as if
such rights, warrants or options had not been issued.
(d) If
any
cash dividend or other distribution is made to all, or substantially all,
holders of Common Stock, the Applicable Conversion Rate shall be adjusted
based
on the following formula:
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic66.jpg)
where
CR0
|
=
|
the
Applicable Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such distribution;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after the Ex-Dividend
Date for such distribution;
|
66
SP0
|
=
|
the
Closing Sale Price of a share of Common Stock on the Trading Day
immediately preceding the earlier of the Record Date and the day
immediately preceding the Ex-Dividend Date for such distribution;
and
|
C
|
=
|
the
amount in cash per share the Company distributes to holders of
Common
Stock.
|
If
any
dividend or distribution described in this Section 10.04(d) is declared but
not
so paid or made, the new Applicable Conversion Rate shall be adjusted, as
of the
date that is the earlier of (i) the public announcement of the non-payment
of
the dividend or distribution and (ii) the date that the dividend or distribution
was to be paid, to the Applicable Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.
(e) If
the
Company or any Subsidiary makes a payment in respect of a tender offer or
exchange offer for Common Stock, to the extent that the cash and value (which
will be, except for the value of traded securities, determined by the Board
of
Directors) of any other consideration included in the payment per share of
Common Stock exceeds the Closing Sale Price per share of Common Stock on
the
Trading Day next succeeding the last date on which tenders or exchanges may
be
made pursuant to such tender or exchange offer, the Applicable Conversion
Rate
shall be adjusted as of the 10th Trading Day following the date the tender
or
exchange offer expires based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/19353/000001935307000028/graphic67.jpg)
where
CR0
|
=
|
the
Applicable Conversion Rate in effect on the 10th day immediately
following, and including, the date such tender or exchange offer
expires;
|
CR'
|
=
|
the
Applicable Conversion Rate in effect immediately after the 10th
Trading
Day immediately following, and including, the date the tender or
exchange
offer expires;
|
AC
|
=
|
the
aggregate value of all cash and any other consideration (as determined
by
the Board of Directors) paid or payable for shares purchased in
such
tender or exchange offer;
|
OS0
|
=
|
the
number of shares of Common Stock outstanding on the Trading Day
immediately prior to the date such tender or exchange offer
expires;
|
67
OS'
|
=
|
the
number of shares of Common Stock outstanding on the Trading Day
immediately after the date such tender or exchange offer expires
(after
giving effect to the purchase or exchange of shares pursuant to
such
tender or exchange offer); and
|
SP'
|
=
|
the
average of the Closing Sale Prices of Common Stock over the 10
consecutive
Trading Day period commencing on the Trading Day next succeeding
the date
such tender or exchange offer expires.
|
The
adjustment to the Applicable Conversion Rate under this Section 10.04(e)
shall
occur on the 10th Trading Day from, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that
in
respect of any conversion within the 10 Trading Days immediately following,
and
including, the expiration date of any tender or exchange offer, references
within this Section 10.04(e) to “10 Trading Days” shall be deemed replaced with
such lesser number of Trading Days as have elapsed between the expiration
date
of such tender or exchange offer and the Conversion Date in determining the
Applicable Conversion Rate.
If
the
Company is obligated to purchase shares pursuant to any such tender or exchange
offer, but the Company is permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded, the Applicable
Conversion Rate shall again be adjusted to be the Applicable Conversion Rate
that would then be in effect if such tender or exchange had not been
made.
(f) No
adjustment to the Applicable Conversion Rate will be required unless the
adjustment would require an increase or decrease of at least 1% of the
Applicable Conversion Rate. If the adjustment is not made because the adjustment
does not change the Applicable Conversion Rate by at least 1%, then the
adjustment that is not made will be carried forward and taken into account
in
any future adjustments. In addition, the Company will make any carry forward
adjustments not otherwise effected upon required purchases of the Securities
in
connection with a Fundamental Change, upon any conversion of the Securities,
on
every one year anniversary from the original issue date and on the Record
Date
immediately prior to Stated Maturity of the Securities. Adjustments to the
Applicable Conversion Rate will be rounded to the nearest ten-thousandth,
with
five one-hundred-thousandths rounded upward (e.g.,
0.76545
would be rounded up to 0.7655).
68
(g) The
Company from time to time may, to the extent permitted by applicable law,
increase the Applicable Conversion Rate by any amount for a period of at
least
20 days if the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Applicable Conversion Rate is increased
pursuant to this Section 10.04(g) or Section 10.04(h) below, the Company
shall
mail to Holders of record of the Securities a notice of the increase at least
15
days prior to the date the increased Applicable Conversion Rate takes effect,
and such notice shall state the increased Applicable Conversion Rate and
the
period during which it will be in effect.
(h) The
Company may (but is not required to) make such increases in the Applicable
Conversion Rate, in addition to any adjustments required by Section 10.04(a),
Section 10.04(b), Section 10.04(c), Section 10.04(d), Section 10.04(e) or
Section 10.04(g), as the Board of Directors considers to be advisable to
avoid
or diminish income tax to Holders resulting from any dividend or distribution
of
Capital Stock issuable on conversion of the Securities (or rights to acquire
shares) or from any event treated as such for income tax purposes.
(i) Except
as
otherwise provided in this Indenture, all calculations under this Article
10
shall be made by the Company. No adjustment shall be made for the Company’s
issuance of Common Stock or securities convertible into or exchangeable for
shares of Common Stock or rights to purchase Common Stock or convertible
or
exchangeable securities, other than as provided in this Section 10.04. The
Company shall make such calculations in good faith and, absent manifest error,
such calculations shall be binding on the Holders.
(j) Whenever
the Applicable Conversion Rate is adjusted as herein provided, the Company
shall
promptly file with the Trustee and any Conversion Agent an Officer’s Certificate
setting forth the Applicable Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Unless and
until
a Responsible Officer of the Trustee shall have received such Officer’s
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment
of the Applicable Conversion Rate and may assume without inquiry that the
last
Applicable Conversion Rate of which it has knowledge is still in effect.
Promptly after delivery of such certificate, the Company shall prepare a
notice
of such adjustment of the Applicable Conversion Rate setting forth the adjusted
Applicable Conversion Rate, a brief statement of the facts requiring such
adjustment and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Applicable Conversion Rate to
each
Securityholder at such Holder’s last address appearing on the list of
Securityholders provided for in Section 2.05, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
69
(k) For
purposes of this Section 10.04, the number of shares of Common Stock at any
time
outstanding shall not include shares held in the treasury of the Company
so long
as the Company does not pay any dividend or make any distribution on shares
of
Common Stock held in the treasury of the Company, but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of
shares
of Common Stock.
(l) Notwithstanding
anything to the contrary in this Article 10, no adjustment to the Applicable
Conversion Rate shall be made:
(i) upon
the
issuance of any shares of Common Stock pursuant to any present or future
plan
providing for the reinvestment of dividends or
Interest
payable on the Company’s Securities and the investment of additional optional
amounts in shares of Common Stock under any plan;
(ii) upon
the
issuance of any shares of Common Stock or options or rights to purchase those
shares pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Company or any Subsidiary;
(iii) upon
the
issuance of any shares of Common Stock pursuant to any option, warrant, right
or
exercisable, exchangeable or convertible security not described in (ii) above
outstanding as of the date the Securities were first issued;
(iv) for
a
change in the par value of the Common Stock;
(v) for
accrued and unpaid Interest, including Additional Amounts, if any;
or
(vi) for
the
avoidance of doubt, for the issuance of Common Stock by the Company (other
than
to all or substantially all holders of Common Stock) or the payment of cash
by
the Company upon conversion or repurchase of Securities.
Section
10.05.
Reserved.
Section
10.06.
Effect
of Reclassification, Consolidation, Merger or Sale.
(a) If
any of the following events occur, namely (i) any reclassification of the
outstanding shares of Common Stock (other than a subdivision or combination
to
which Section 10.04(c) applies or a change in par value) as a result of which
holders of Common Stock shall be entitled to receive cash, securities or
other
property (such property, the “Exchange
Property”)
with
respect to or in exchange for such Common Stock, (ii) any consolidation,
merger,
binding share exchange or combination of the Company with another person
as a
result of which holders of Common Stock shall be entitled to receive Exchange
Property with respect to or in exchange for such Common Stock, or (iii) any
sale
or conveyance of all or
70
substantially
all the properties and assets of the Company to any other person as a result
of
which holders of Common Stock shall be entitled to receive Exchange Property
with respect to or in exchange for such Common Stock, then the Company or
the
successor or purchasing person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing for the conversion and settlement of the Securities as set forth
in
this Indenture. Such supplemental indenture shall provide for adjustments
which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 10. If, in the case of any such reclassification, change,
consolidation, merger, binding share exchange, combination, sale or conveyance,
the Exchange Property receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and assets of a corporation other than
the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, binding share exchange,
combination, 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 shall reasonably consider necessary by reason of the
foregoing.
(b) The
Conversion Obligation with respect to each $1,000 principal amount of Securities
converted following the effective date of any such transaction, shall be
calculated (as provided in clause (c) below) based on the Exchange Property.
In
the event holders of the Common Stock have the opportunity to elect the form
of
consideration to be received in such transaction, the Company shall make
adequate provision whereby the Holders of the Securities shall have a reasonable
opportunity to determine the form of consideration, consistent with the election
rights and restrictions applicable to holders of Common Stock, into which
all of
the Securities, treated as a single class, shall be convertible from and
after
the effective date of such transaction. Such determination shall be made
pursuant to Section 1.05 and shall be subject to any limitations to which
all of
the holders of the Common Stock are subject, such as pro-rata reductions
applicable to any portion of the consideration payable in such event and
shall
be conducted in such a manner as to be completed by the date which is the
earliest of (a) the deadline for elections to be made by holders of the Common
Stock in connection with such transaction, and (b) two Trading Days prior
to the
anticipated effective date of such event. The Company shall provide notice
of
the opportunity to determine the form of such consideration, as well as notice
of the determination made by Holders of the Securities by issuing a press
release and providing a copy of such notice to the Trustee. The Company shall
not become a party to any such transaction unless its terms are consistent
with
the preceding.
71
(c) The
Conversion Obligation in respect of any Securities converted following the
effective date of any such transaction shall be computed in the same manner
as
set forth in Section 10.03(a) except that (1) if the Securities become
convertible into Exchange Property, the Daily VWAP of the Common Stock shall
be
deemed to equal the sum of (A) 100% of the value of any Exchange Property
consisting of cash received per share of Common Stock, (B) the Daily VWAP
of any
Exchange Property received per share of Common Stock consisting of securities
that are traded on a U.S. national securities exchange and (2) the Fair Market
Value of any other Exchange Property received per share, as determined by
an
independent nationally recognized investment bank selected by the Company
for
this purpose. Settlement (in cash and/or shares) shall occur on the Conversion
Settlement Date, provided,
that any
amount of the Settlement Amount or Settlement Shares, as applicable, to be
delivered in shares of Common Stock shall be paid in Exchange Property rather
than shares of Common Stock. If the Exchange Property includes more than
one
kind of property, the amount of Exchange Property of each kind to be delivered
shall be in the proportion that the value of the Exchange Property (as
calculated pursuant to Section 10.03) of such kind bears to the value of
all
such Exchange Property. If the foregoing calculations would require the Company
to deliver a fractional share or unit of Exchange Property to a Holder of
Securities being converted, the Company shall deliver cash in lieu of such
fractional share or unit based on the value of the Exchange
Property.
(d) The
Company shall cause notice of the execution of such supplemental indenture
to be
mailed to each Holder of Securities, at its address appearing on the Security
register provided for in Section 10.03 of this Indenture, within 20 days
after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.
(e) The
above
provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges,
combinations, sales and conveyances.
If
this
Section 10.06 applies to any event or occurrence, Section 10.04 shall
not
apply to such event or occurrence.
Section
10.07.
Taxes
on Shares Issued.
The
issue of stock certificates on conversions of Securities shall be made without
charge to the converting Holder for any tax in respect of the issue thereof,
except for applicable withholding, if any. The Company shall not, however,
be
required to pay any tax or duty which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of
the
Holder or beneficial owner of any Securities converted, and the Company shall
not be required to issue or deliver any such stock certificate unless and
until
the person or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction
of
the Company that such tax has been paid or that none is due.
72
(b) Before
taking any action which would cause an adjustment increasing the Applicable
Conversion Rate to an amount that would cause the Applicable Conversion Price
to
be reduced below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Securities, the Company shall take all corporate
action which may, in the opinion of its counsel, be necessary in order that
the
Company may validly and legally issue shares of such Common Stock at such
adjusted Applicable Conversion Rate.
(c) (i)
The
Company covenants that all shares of Common Stock which may be issued upon
conversion of Securities shall upon issue be fully paid and non-assessable
by
the Company and free from all taxes, liens and charges with respect to the
issue
thereof.
(ii) The
Company covenants that, if any shares of Common Stock to be provided for
the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company shall in good
faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the SEC (or any successor thereto), endeavor
to
secure such registration or approval, as the case may be.
73
Section
10.06 relating either to the kind or amount of shares of stock or securities
or
property (including cash) receivable by Holders upon the conversion of their
Securities after any event referred to in such Section 10.06 or to any
adjustment to be made with respect thereto, but, subject to the provisions
of
Section 7.01, may accept as conclusive evidence of the correctness of any
such
provisions, and shall be protected in relying upon the Officer’s Certificate
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
ARTICLE
11
Miscellaneous
Section
11.01.
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
11.02.
Notices.
Any
request, demand, authorization, notice, waiver, consent or communication
by the
Company or the Trustee to the other is duly given if in writing and delivered
in
person or mailed by first-class mail, postage prepaid, addressed as follows
or
transmitted by facsimile transmission to the following facsimile
numbers:
if
to the
Company:
Charming
Shoppes, Inc.
000
Xxxxx
Xxxx
Bensalem,
Pennsylvania 19020
Attn:
Xxxxx X. Xxxxx
Facsimile:
(000) 000-0000
With
a
copy to (which shall not constitute notice):
Drinker
Xxxxxx & Xxxxx LLP
Xxx
Xxxxx
Xxxxxx
18th
and
Cherry Streets
Philadelphia,
Pennsylvania 19103
Attn:
X.
Xxxxxxx Xxxxxxx XXX
Facsimile:
(000) 000-0000
if
to the
Trustee:
Xxxxx
Fargo Bank, National Association
0000
XXX
Xxxxxxxxx, Xxxxx 000
Philadelphia,
Pennsylvania 19103
Attn:
Corporate Trust Services
Facsimile:
(000) 000-0000
74
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 delivered to the
Securityholder, in accordance with the procedures of the Registrar or 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; provided,
however,
that no
notice to the Trustee shall be deemed to be duly given unless and until the
Trustee actually receives same at the address given above.
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
11.03.
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 Registrar, the Paying Agent, the Conversion Agent and anyone
else
shall have the protection of TIA Section 312(c).
Section
11.04.
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 (other than to authenticate the Securities under Section 2.02),
the Company shall furnish to the Trustee:
(1) an
Officer’s Certificate stating that, in the opinion of the signer, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with.
Section
11.05.
Statements Required in Certificate or Opinion.
Each
Officer’s Certificate or Opinion of Counsel delivered pursuant to Section 11.04
with respect to compliance with a covenant or condition provided for in this
Indenture shall include:
(1) a
statement that each person making such Officer’s Certificate or Opinion of
Counsel has read such covenant or condition;
75
(2) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such Officer’s Certificate or
Opinion of Counsel are based;
(3) 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
(4) a
statement that, in the opinion of such person, such covenant or condition
has
been complied with.
Section
11.06.
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
11.07.
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, the Bid Solicitation Agent and the Paying
Agent may make reasonable rules for their functions.
Section
11.08.
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 shall accrue
with respect to such payment for the intervening period.
Section
11.09.
Governing Law.
THIS
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES
THEREOF.
Section
11.10.
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
this 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
shall waive and release all such liability. The waiver and release shall
be part
of the consideration for the issue of the Securities.
Section
11.11.
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.
76
Section
11.12.
Multiple Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy
shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
77
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.
CHARMING
SHOPPES, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
1
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION,
as
Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
2
EXHIBIT
A
[FORM
OF
FACE OF GLOBAL SECURITY]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
&
CO. OR 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.
NEITHER
THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION OF THIS
SECURITY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION
OF
THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”)) (A
“QUALIFIED INSTITUTIONAL BUYER”);
(2)
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH
IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
OR ANY
COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, PRIOR TO THE EXPIRATION
OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k)
UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR
A-1
PROVISION),
ONLY (A) TO CHARMING SHOPPES, INC. (THE “ISSUER”) OR A SUBSIDIARY THEREOF, (B)
UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER), (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE UNDER
RULE
144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY BELIEVES IS
A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) UNDER ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO
THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT
IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED ON
THE
EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(B) ABOVE OR ON ANY
TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION).
A-2
CHARMING
SHOPPES, INC.
1.125%
Senior Convertible Notes Due 2014
CUSIP:
000000XX0
ISSUE
DATE: April 30, 2007
|
Principal
Amount: $250,000,000
|
No.
CHARMING
SHOPPES, INC., a Pennsylvania corporation, promises to pay to Cede & Co. or
registered assigns, the principal amount of Two Hundred Fifty Million Dollars,
on May 1, 2014.
Interest
Rate: 1.125% per year.
Interest
Payment Dates: May 1 and November 1 of each year, commencing November 1,
2007.
Interest
Record Date: April 15 and October 15 of each year.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse side of this Security, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
April ___, 2007
|
CHARMING
SHOPPES, INC.
|
By:___________________________
|
|
Name:
|
|
Title:
|
A-4
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee, certifies that this is one
of
the
Securities referred to in the
within-mentioned
Indenture.
By__________________________________
Authorized
Officer
Dated:
April ___, 2007
A-5
[FORM
OF
REVERSE OF GLOBAL SECURITY]
1.125%
Senior Convertible Notes Due 2014
This
Security is one of a duly authorized issue of 1.125% Senior Convertible Notes
Due 2014 (the “Securities”)
of
Charming Shoppes, Inc., a Pennsylvania corporation (including any successor
corporation under the Indenture hereinafter referred to, the “Company”),
issued under an Indenture, dated as of April 30, 2007 (the “Indenture”),
between the Company and Xxxxx Fargo Bank, National Association, as trustee
(the
“Trustee”).
The
terms of the Security include those stated in the Indenture, those made part
of
the Indenture by reference to the Trust Indenture Act of 1939, as amended
(“TIA”),
and
those set forth in this Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of
all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control. Capitalized terms used but not
defined
herein have the meanings assigned to them in the Indenture unless otherwise
indicated.
1. Interest.
The
Securities shall bear Interest on the principal amount thereof at a rate
of
1.125% per year. The Company shall also pay Additional Amounts, if any, as
set
forth in the Indenture and the Registration Rights Agreement.
Interest
shall be payable semi-annually in arrears on each Interest Payment Date to
Holders at the close of business on the preceding Interest Record Date. Interest
shall be computed on the basis of a 360-day year comprised of twelve 30 day
months and will accrue from April 30, 2007 or from the most recent date to
which
Interest has been paid or duly provided for.
The
Company shall pay Interest to the Securityholder of record on the Interest
Record Date, except that if a Securityholder elects to require the Company
to
repurchase Securities on a date that is after an Interest Record Date but
on or
prior to the corresponding Interest Payment Date, the Company shall pay accrued
and unpaid Interest on the Securities being repurchased to, but not including,
the Fundamental Change Repurchase Date to the Securityholder of record on
the
Fundamental Change Repurchase Date.
If
the
principal amount of any Security, or any accrued and unpaid Interest or
Additional Amounts, if any, are not paid when due (whether upon acceleration
pursuant to Section 6.02 of the Indenture, upon the date set for payment
of the
Fundamental Change Repurchase Price pursuant to Section 4 hereof, upon the
Stated Maturity of the Securities, upon the Interest Payment Dates or upon
the
Additional Amounts Payment Dates (as defined in the Registration Rights
Agreement)), then in each such case the overdue amount shall, to the
extent
A-6
permitted
by law, bear cash interest at the rate of 1.125% per annum, compounded
semi-annually, 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 in
cash
on demand but if not so demanded shall be paid quarterly to the Holders on
the
last day of each quarter.
2. Method
of Payment.
Except
as
provided below, the Company shall pay Interest, including Additional Amounts,
if
any, on (i) Global Securities, to DTC in immediately available funds, (ii)
any
Certificated Security having an aggregate principal amount of $2,000,000
or
less, by check mailed to the Holder of such Security and (iii) any Certificated
Security having an aggregate principal amount of more than $2,000,000, by
wire
transfer in immediately available funds if requested by the Holder of any
such
Security as least five business days prior to the relevant Interest Payment
Date.
At
Stated
Maturity, the Company shall pay Interest on Certificated Securities at the
Company’s office or agency maintained for that purpose, which initially shall be
the office or agency of the Trustee located at 0xx xxx Xxxxxxxxx Xxx.,
X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
Subject
to the terms and conditions of the Indenture, the Company shall make payments
in
cash in respect of Fundamental Change Repurchase Prices and at Stated Maturity
to Holders who surrender Securities to a Paying Agent to collect such payments
in respect of the Securities. The Company shall 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 make such cash payments by check
payable in such money.
3. Indenture.
The
Securities are general unsecured obligations of the Company limited to
$250,000,000 aggregate principal amount (or, to the extent the Initial
Purchasers exercise their over-allotment option, $275,000,000) aggregate
principal amount. The Indenture does not limit other indebtedness of the
Company, secured or unsecured.
At
the
option of any Holder and subject to the terms and conditions of the Indenture,
the Company shall become obligated to repurchase the Securities held by such
Holder after the occurrence of a Fundamental Change for a Fundamental Change
Repurchase Price equal to 100% of the principal amount of those Securities
plus
accrued and unpaid Interest and accrued and unpaid Additional Amounts, if
any,
on those Securities up to, but not including, the Fundamental
A-7
Change
Repurchase Date. To exercise such right, a Holder shall deliver to the Paying
Agent a Fundamental Change Repurchase Notice containing the information set
forth in the Indenture at any time on or prior to the close of business on
the
Business Day immediately preceding the Fundamental Change Repurchase Date
and
shall deliver the Securities to the Paying Agent as set forth in the
Indenture.
Holders
have the right to withdraw any Fundamental Change Repurchase Notice 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 Fundamental Change Repurchase Price of all Securities
or
portions thereof to be purchased as of the Fundamental Change Repurchase
Date is
deposited with the Paying Agent, prior to or on the Business Day following
the
Fundamental Change Repurchase Date, Interest and Additional Amounts, if any,
shall cease to accrue on such Securities (or portions thereof) on and following
such Fundamental Change Repurchase Date, and the Holder thereof shall have
no
other rights as such other than the right to receive the Fundamental Change
Repurchase Price upon surrender of such Security.
5. Conversion.
Subject
to the occurrence of certain events and in compliance with the provisions
of the
Indenture (including, without limitation, the conditions to conversion of
this
Security set forth in Section 10.01 thereof), a Holder is entitled, at such
Holder’s option, to convert the Holder’s Security (or any portion of the
principal amount thereof that is $1,000 or an integral multiple of $1,000)
at
the Applicable Conversion Rate in effect at the time of conversion.
The
Company shall notify Holders of any event triggering the right to convert
the
Securities as specified in the Indenture.
A
Security in respect of which a Holder has delivered a Fundamental Change
Repurchase Notice exercising the option of such Holder to require the Company
to
purchase such Security, may be converted only if such Fundamental Change
Repurchase Notice is withdrawn in accordance with the terms of the
Indenture.
The
initial Applicable Conversion Rate is 65.0233 shares of Common Stock per
$1,000
principal amount, subject to adjustment in certain events described in the
Indenture. The Applicable Conversion Rate shall not be adjusted for any accrued
and unpaid Interest or accrued and unpaid Additional Amounts, if any. Upon
conversion, no payment shall be made by the Company with respect to accrued
and
unpaid Interest and accrued and unpaid Additional Amounts, if any. Instead,
such
amount shall be deemed paid by the cash and shares of Common Stock, if any,
delivered upon conversion of any Security. In addition, no payment
A-8
or
adjustment shall be made in respect of dividends on the Common Stock, except
as
set forth in the Indenture.
In
addition, following certain corporate transactions as set forth in Section
10.01(b) of the Indenture that constitute a Fundamental Change, a Holder
who
elects to convert its Securities in connection with such corporate transaction
shall be entitled to receive Additional Shares of Common Stock upon conversion,
subject to the terms and conditions set forth in Section 10.01(c) of the
Indenture.
To
surrender a Security for conversion, a Holder must (1) complete and manually
sign the Conversion Notice attached hereto (or complete and manually sign
a
facsimile of such notice) and deliver such notice to the Conversion Agent,
(2)
surrender the Security to the Conversion Agent, (3) if required, furnish
appropriate endorsements and transfer documents, (4) if required by Section
10.02(h)of the Indenture, pay Interest and (5) pay any transfer or similar
tax,
if required.
No
fractional shares of Common Stock shall be issued upon conversion of any
Security. Instead of any fractional share of Common Stock that would otherwise
be issued upon conversion of such Security, the Company shall pay a cash
adjustment as provided in the Indenture.
If
the
Company engages in any reclassification of the Common Stock (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
is party to a consolidation, merger, binding share exchange or transfer of
all
or substantially all of its assets, and as a result of any such event the
Holders of Common Stock would be entitled to receive Exchange Property for
their
Common Stock, upon conversion of the Securities after the effective date
of such
event, the Conversion Obligation and the Settlement Amount shall be based
on the
Applicable Conversion Rate and the Exchange Property, in each case in accordance
with the Indenture. If the transaction also constitutes a Fundamental Change
that would lead to the issuance of Additional Shares as set forth in Section
10.01(c) of the Indenture, if a Holder elects to convert all or a portion
of its
Securities, such Holder shall receive Additional Shares upon conversion pursuant
to Section 10.01(c) of the Indenture, subject to the terms and conditions
set
forth in such Section.
6. Paying
Agent, Conversion Agent, Bid Solicitation Agent and
Registrar.
Initially,
the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Bid
Solicitation Agent or Registrar without notice, other than notice to the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates
may
act as Paying Agent, Conversion Agent or Registrar.
A-9
7. 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 exchange 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 in respect of which a Fundamental Change Repurchase 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).
8. Persons
Deemed Owners.
Except
as
otherwise provided in the Indenture, the registered Holder of this Security
will
be treated as the owner of this Security for all purposes.
9. 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 one year, subject to applicable
abandoned 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.
10. 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 outstanding Securities and
(ii)
certain Events of Defaults may be waived with the written consent of the
Holders
of a majority in aggregate principal amount of the outstanding Securities.
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 (i) to add guarantees with respect to the Securities or secure
the
Securities, (ii) to conform as necessary, the Indenture and this Security
to the
“Description of the Debentures” as set forth in the Offering Memorandum, (iii)
to add to the covenants of the Company or Events of Default for the benefit
of
the Holders of Securities, (iv) to surrender any right or power conferred
upon
the Company in the Indenture, (v) to provide for the assumption by a successor
company of the Company’s obligations to the Holders of Securities in the case of
a merger, consolidation, sale conveyance, transfer, sale or lease as provided
under the Indenture, (vi) to comply with the requirements of the SEC in order
to
effect or maintain the qualification of the Indenture under the TIA, (vii)
to
cure any ambiguity or to correct or supplement any provision in the Indenture
which may
A-10
be
inconsistent with any other provision in the Indenture, (viii) to make other
changes to the Indenture or forms or terms of the Securities so long as no
such
change individually or in the aggregate with all other such changes has or
will
have a material adverse effect on the interests of the Holders of the
Securities, (ix) to establish the form of Securities substantially in the
form
of Exhibit B to the Indenture, (x) to evidence and provide for the acceptance
of
the appointment under the Indenture of a successor Trustee in accordance
with
the terms of the Indenture and (xi) to provide for uncertificated Securities
in
addition to or in place of certificated Securities; provided,
however,
that
the uncertificated Securities are issued in registered form for purposes
of
Section 163(f) of the Code, or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code.
11. Defaults
and Remedies.
As
set
forth in the Indenture, subject to certain exceptions, if any Event of Default
with respect to Securities shall occur and be continuing, the principal amount
of the Securities and any accrued and unpaid Interest and accrued and unpaid
Additional Amounts, if any, on all the Securities may be declared due and
payable in the manner and with the effect provided in the
Indenture.
12. 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.
13. Calculations
in Respect of Securities.
Except
as
otherwise provided in the Indenture, the Company or its agents shall be
responsible for making all calculations called for under the Securities
including, but not limited to, determination of the market prices for the
Securities and of the Common Stock and the Additional Amounts, if any, accrued
on the Securities. Any calculations made in good faith and without manifest
error shall be final and binding on Holders of the Securities. The Company
or
its agents shall be required to deliver to the Trustee a schedule of its
calculations and the Trustee shall be entitled to conclusively rely upon
the
accuracy of such calculations without independent verification.
14. 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
A-11
waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
15. 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.
16. 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
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).
17. Governing
Law.
THE
LAWS
OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.
18. Copy
of Indenture.
The
Company shall 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:
Charming
Shoppes, Inc.
000
Xxxxx
Xxxx
Bensalem,
Pennsylvania 19020
Attn:
Xxxxx X. Xxxxx
Facsimile:
(000) 000-0000
19. Registration
Rights.
The
Holders of the Securities are entitled to the benefits of a Registration
Rights
Agreement, dated April 30, 2007, among the Company and Banc of America
Securities LLC and X.X. Xxxxxx Securities Inc., as representatives of the
initial purchasers, including the right to receive Additional Amounts upon
a
Registration Default (as defined in such agreement). The Company shall make
payments of Additional Amounts on the Additional Amounts Payment Dates (as
defined in the Registration Rights Agreement), but otherwise in accordance
with
the provisions set forth herein for the payment of Interest.
A-12
ASSIGNMENT
FORM
|
CONVERSION
NOTICE
|
|
To
assign this Security, fill in the form below:
|
To
convert this Security, check the box [ ]
|
|
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.
|
To
convert only part of this Security, state the principal amount
to be
converted (which must be $1,000 or an integral multiple of $1,000):
If
you want the stock certificate made out in another person’s name fill in
the form below:
_____________________________
_____________________________
(Insert
the other person’s soc. sec. tax ID no.)
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
(Print
or type other person’s name, address and zip
code)
|
Date:
__________ Your Signature: _________________________________
______________________________________________________________
(Sign
exactly as your name appears on the other side of this Security)
Signature
Guaranteed
________________________________
Participant
in a Recognized Signature
Guarantee
Medallion Program
By:_____________________________
Authorized
Signatory
A-13
SCHEDULE
OF INCREASES AND DECREASES
OF
GLOBAL
SECURITY
Initial
Principal Amount of Global Security: ______________________________
($_________________).
Date
|
Amount
of Increase in Principal Amount of Global Security
|
Amount
of Decrease in Principal Amount of Global Security
|
Principal
Amount of Global Security After Increase or Decrease
|
Notation
by Registrar or Security Custodian
|
A-14
EXHIBIT
B
[FORM
OF
FACE OF CERTIFICATED SECURITY]
NEITHER
THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION OF THIS
SECURITY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION
OF
THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”)) (A
“QUALIFIED INSTITUTIONAL BUYER”);
(2)
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH
IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
OR ANY
COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, PRIOR TO THE EXPIRATION
OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k)
UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), ONLY (A) TO CHARMING SHOPPES,
INC. (THE “ISSUER”) OR A SUBSIDIARY THEREOF, (B) UNDER A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES
TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH RULE 144A TO
A
PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR
(D) UNDER ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH
OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED ON THE EARLIER OF THE TRANSFER OF THIS SECURITY
UNDER CLAUSE 2(B) ABOVE OR ON
B-1
ANY
TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION).
B-2
CHARMING
SHOPPES, INC.
1.125%
Senior Convertible Notes Due 2014
CUSIP:
000000XX0
ISSUE
DATE: April 30, 2007
|
Principal
Amount: $250,000,000
|
No.
CHARMING
SHOPPES, INC., a Pennsylvania corporation, promises to pay to __________
or
registered assigns, the principal amount of _____________________, on May
1,
2014.
Interest
Rate: 1.125% per year.
Interest
Payment Dates: May 1 and November 1 of each year, commencing November 1,
2007.
Interest
Record Date: April 15 and October 15 of each year.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse side of this Security, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-3
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
________
|
CHARMING
SHOPPES, INC.
|
By:
__________________________
|
|
Title:
_________________________
|
B-4
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
____________________________,
Xxxxx
Fargo Bank, National Association
as
Trustee, certifies that this is one
of
the
Securities referred to in the
within-mentioned
Indenture.
By__________________________________
Authorized
Signatory
Dated:
____________
B-5
[FORM
OF
REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
B-6
EXHIBIT
C
CHARMING
SHOPPES, INC.
1.125%
Convertible Senior Subordinated Notes due 2014
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
issuable 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 is pursuant to an effective
registration statement under the Securities Act; or
|
[_]
|
The
transfer of the Surrendered Securities complies with Rule 144A
under the
Securities Act; or
|
[_]
|
The
transfer of the Surrendered Securities is pursuant to Rule 144
under the
Securities Act and each of the conditions set forth in such rule
have been
met;
|
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”).
C-1
[_]
|
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.)
Signature
Guaranteed
_______________________________
Participant
in a Recognized Signature
Name:
Address:
Tax
I.D.:
C-2
EXHIBIT
D
CHARMING
SHOPPES, INC.
NOTICE
OF OCCURRENCE
OF
FUNDAMENTAL CHANGE
[DATE]
To
the
Holders of the 1.125% Senior Convertible Notes Due 2014
(the
“Securities”) issued by Charming Shoppes, Inc.:
Charming
Shoppes, Inc. (the “Company”) by this written notice hereby notifies you,
pursuant to Section 3.02 of that certain Indenture (the “Indenture”), dated as
of April 30, 2007, between the Company and Xxxxx Fargo Bank, National
Association, that a Fundamental Change (as such term and other capitalized
terms
used herein and not otherwise defined herein is defined in the Indenture)
as
described below has occurred. Included herewith is the form of Fundamental
Change Repurchase Notice to be completed by you if you wish to have your
Securities repurchased by the Company.
1. Fundamental
Change: [Insert
brief description of the Fundamental Change and the date of the occurrence
thereof].
2. Date
by
which Fundamental Change Repurchase Notice must be delivered by you to Paying
Agent in order to have your Securities repurchased:
3. Fundamental
Change Repurchase Date:
4. Fundamental
Change Repurchase Price:
5. Paying
Agent and Conversion Agent: [NAME] [ADDRESS]
6. Applicable
Conversion Rate: To
the
extent described in Item 7 below, each $1,000 principal amount of the Securities
is convertible into [insert number of shares] shares of the Company’s common
stock, par
value
$0.10 per share
(the
“Common Stock”), subject to adjustment.
7. The
Securities as to which you have delivered a Fundamental Change Repurchase
Notice
to the Paying Agent may be converted if they are otherwise convertible pursuant
to Article 10 of the Indenture and the terms of the Securities only if you
withdraw such Fundamental Change Repurchase Notice pursuant to the terms
of the
Indenture. Subject to Section 10.01 of the Indenture, you may be entitled
to
have your Securities converted into cash and shares of the Company’s common
stock, if any:
D-1
Trading
Days during the period of 30 consecutive Trading Days ending on the last
Trading
Day (as defined in the Indenture) of the immediately preceding fiscal quarter
was more than 130% of the Applicable Conversion Price (as defined in the
Indenture) on such last Trading Day;
(ii)
during the five business days immediately following any five consecutive
Trading-Day period in which the Trading Price (as defined in the Indenture)
per
$1,000 principal amount of the Securities for each day of that period was
less
than 98% of the product of the Closing Sale Price of the Common Stock and
the
Applicable Conversion Rate (as defined in the Indenture) of the Securities
on
each such day;
(iii)
on
or after November 15, 2013; or
(iv)
upon
the occurrence of certain specified corporate transactions described in the
Indenture.
8. The
Securities as to which you have delivered a Fundamental Change Repurchase
Notice
must be surrendered by you (by effecting book entry transfer of the Securities
or delivering Certificated Securities, together with necessary endorsements,
as
the case may be) to [Name of Paying Agent] at [insert address] in order for
you
to collect the Fundamental Change Repurchase Price.
9. The
Fundamental Change Repurchase Price for the Securities as to which you have
delivered a Fundamental Change Repurchase Notice and not withdrawn such Notice
shall be paid, subject to receipt of funds and/or securities by the Paying
Agent, promptly following the later of the Business Day immediately following
such Fundamental Change Repurchase Date and the date you deliver such Securities
to [Name of Paying Agent].
10. In
order
to have the Company repurchase your Securities, you must deliver the Fundamental
Change Repurchase Notice, duly completed by you with the information required
by
such Fundamental Change Repurchase Notice (as specified in Section 3.02 of
the
Indenture) and deliver such Fundamental Change Repurchase Notice to the Paying
Agent at any time until 5:00 p.m. (New York City Time) on the Business Day
immediately preceding the Fundamental Change Repurchase Date.
11. In
order
to withdraw any Fundamental Change Repurchase Notice previously delivered
by you
to the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. (New
York City time) on the Business Day immediately preceding the Fundamental
Change
Repurchase Date, a written notice of withdrawal specifying (i) the certificate
number, if any, of the Securities in respect of which such notice of withdrawal
is being submitted, (ii) the principal
D-2
amount
of
the Securities in respect of which such notice of withdrawal is being submitted,
and (iii) if you are not withdrawing your Fundamental Change Repurchase Notice
for all of your Securities, the principal amount of the Securities which
still
remain subject to the original Fundamental Change Repurchase
Notice.
12. Unless
the Company defaults in making the payment of the Fundamental Change Repurchase
Price owed to you, Interest and Additional Amounts, if any, on your Securities
as to which you have delivered a Fundamental Change Repurchase Notice shall
cease to accrue on and after the Fundamental Change Repurchase
Date.
13. CUSIP
Number: 000000XX0
CHARMING
SHOPPES, INC.
D-3
SCHEDULE
I
The
following table sets forth the Stock Prices and the number of Additional
Shares
per $1,000 principal amount of Securities.
Effective
Date
|
|
$12.71
|
|
$15.00
|
|
$18.00
|
|
$21.00
|
|
$24.00
|
|
$27.00
|
|
$30.00
|
|
$33.00
|
|
$36.00
|
|
$39.00
|
|
$42.00
|
|
$45.00
|
|||||||||||||
April
30, 2007
|
13.6549
|
10.5034
|
6.9294
|
4.7851
|
3.4082
|
2.4837
|
1.8404
|
1.3799
|
1.0423
|
0.7901
|
0.5989
|
0.4521
|
|||||||||||||||||||||||||
May
1, 2008
|
13.6549
|
10.4900
|
6.8105
|
4.6103
|
3.2232
|
2.3085
|
1.6829
|
1.2423
|
0.9242
|
0.6900
|
0.5147
|
0.3819
|
|||||||||||||||||||||||||
May
1, 2009
|
13.6549
|
10.4370
|
6.5813
|
4.3379
|
2.9575
|
2.0690
|
1.4754
|
1.0663
|
0.7770
|
0.5680
|
0.4144
|
0.2999
|
|||||||||||||||||||||||||
May
1, 2010
|
13.6549
|
10.1862
|
6.1762
|
3.9177
|
2.5757
|
1.7415
|
1.2029
|
0.8435
|
0.5967
|
0.4233
|
0.2990
|
0.2084
|
|||||||||||||||||||||||||
May
1, 2011
|
13.6549
|
9.7072
|
5.5454
|
3.3137
|
2.0574
|
1.3191
|
0.8676
|
0.5812
|
0.3936
|
0.2669
|
0.1793
|
0.1174
|
|||||||||||||||||||||||||
May
1, 2012
|
13.6549
|
8.8074
|
4.5288
|
2.4245
|
1.3539
|
0.7884
|
0.4770
|
0.2974
|
0.1888
|
0.1199
|
0.0742
|
0.0427
|
|||||||||||||||||||||||||
May
1, 2013
|
13.6549
|
7.1555
|
2.8498
|
1.1341
|
0.4693
|
0.2115
|
0.1074
|
0.0610
|
0.0367
|
0.0213
|
0.0101
|
0.0016
|
|||||||||||||||||||||||||
May
1, 2014
|
13.6549
|
2.0349
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|