Exhibit 4.1
EXECUTION COPY
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PLAYBOY ENTERPRISES, INC.
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
3.00% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025
INDENTURE
Dated as of March 15, 2005
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CROSS-REFERENCE TABLE*
TIA Section Indenture Section
----------- -----------------
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; 13.02
(c)........................................................ N.A.
311(a)...................................................... 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)...................................................... 2.05
(b)........................................................ 13.03
(c)........................................................ 13.03
313(a)...................................................... 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 7.06; 13.02
(d)........................................................ 7.06
314(a)...................................................... 4.03
(b)........................................................ N.A.
(c)(1)..................................................... 13.04
(c)(2)..................................................... 13.04
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 13.05
(f)........................................................ N.A.
315(a)...................................................... 7.01(B)
(b)........................................................ 7.05; 13.02
(c)........................................................ 7.01(A)
(d)........................................................ 7.01(C)
(e)........................................................ 6.11
316(a) (last sentence)...................................... 2.09
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
(c)........................................................ N.A.
317(a)(1)................................................... 6.08
(a)(2)..................................................... 6.09
(b)........................................................ 2.04
318(a)...................................................... 13.01
N.A. means not applicable.
*This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.................................................1
Section 1.02 Other Definitions...........................................6
Section 1.03 Incorporation By Reference Of Trust Indenture Act...........8
Section 1.04 Rules Of Construction.......................................8
ARTICLE II
THE SECURITIES
Section 2.01 Form And Dating.............................................8
Section 2.02 Execution And Authentication................................9
Section 2.03 Registrar, Paying Agent And Conversion Agent...............10
Section 2.04 Paying Agent To Hold Money In Trust........................10
Section 2.05 Securityholder Lists.......................................10
Section 2.06 Transfer And Exchange......................................10
Section 2.07 Replacement Securities.....................................11
Section 2.08 Outstanding Securities.....................................11
Section 2.09 Securities Held By The Company Or An Affiliate.............12
Section 2.10 Temporary Securities.......................................12
Section 2.11 Cancellation...............................................12
Section 2.12 Defaulted Interest.........................................12
Section 2.13 CUSIP Numbers..............................................13
Section 2.14 Deposit Of Moneys And Property.............................13
Section 2.15 Book-Entry Provisions For Global Securities................13
Section 2.16 Special Transfer Provisions................................14
Section 2.17 Legends....................................................16
ARTICLE III
REDEMPTION AND REPURCHASE
Section 3.01 Right Of Redemption........................................16
Section 3.02 Notices To Trustee.........................................17
Section 3.03 Selection Of Securities To Be Redeemed.....................17
Section 3.04 Notice Of Redemption.......................................17
Section 3.05 Effect Of Notice Of Redemption.............................18
Section 3.06 Deposit Of Redemption Price................................19
Section 3.07 Securities Redeemed In Part................................19
Section 3.08 Purchase Of Securities At Option Of The Holder.............19
Section 3.09 Repurchase At Option Of Holder Upon A Fundamental Change...23
ARTICLE IV
COVENANTS
Section 4.01 Payment Of Securities......................................28
Section 4.02 Maintenance Of Office Or Agency............................29
Section 4.03 Rule 144A Information And Annual Reports...................29
Section 4.04 Compliance Certificate.....................................30
Section 4.05 Stay, Extension And Usury Laws.............................30
Section 4.06 Corporate Existence........................................30
Section 4.07 Notice Of Default..........................................30
Section 4.08 Limitation On Layering Indebtedness........................30
Section 4.09 Payment Of Additional Interest.............................30
Section 4.10 Payment Of Contingent Interest.............................31
ARTICLE V
SUCCESSORS
Section 5.01 When Company May Merge, Etc................................31
Section 5.02 Successor Substituted......................................31
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events Of Default..........................................32
Section 6.02 Acceleration...............................................33
Section 6.03 Other Remedies.............................................34
Section 6.04 Waiver Of Past Defaults....................................34
Section 6.05 Control By Majority........................................34
Section 6.06 Limitation On Suits........................................35
Section 6.07 Rights Of Holders To Receive Payment And To Convert
Securities...............................................35
Section 6.08 Collection Suit By Trustee.................................35
Section 6.09 Trustee May File Proofs Of Claim...........................35
Section 6.10 Priorities.................................................36
Section 6.11 Undertaking For Costs......................................36
ARTICLE VII
TRUSTEE
Section 7.01 Duties Of Trustee..........................................36
Section 7.02 Rights Of Trustee..........................................37
Section 7.03 Individual Rights Of Trustee...............................39
Section 7.04 Trustee's Disclaimer.......................................39
Section 7.05 Notice Of Defaults.........................................39
Section 7.06 Reports By Trustee To Holders..............................39
Section 7.07 Compensation And Indemnity.................................39
Section 7.08 Replacement Of Trustee.....................................40
Section 7.09 Successor Trustee By Merger, Etc...........................41
Section 7.10 Eligibility; Disqualification..............................41
Section 7.11 Preferential Collection Of Claims Against Company..........41
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination Of The Obligations Of The Company..............41
Section 8.02 Application Of Trust Money.................................42
Section 8.03 Repayment To Company.......................................42
Section 8.04 Reinstatement..............................................42
ARTICLE IX
AMENDMENTS
Section 9.01 Without Consent Of Holders.................................43
Section 9.02 With Consent Of Holders....................................43
Section 9.03 Compliance With Trust Indenture Act........................44
Section 9.04 Revocation And Effect Of Consents..........................44
Section 9.05 Notation On Or Exchange Of Securities......................46
Section 9.06 Trustee Protected..........................................46
Section 9.07 Effect of Supplemental Indentures..........................46
ARTICLE X
CONVERSION
Section 10.01 Conversion Privilege; Restrictive Legends...................46
Section 10.02 Conversion Procedure And Payment Upon Conversion............48
Section 10.03 Taxes On Conversion.........................................51
Section 10.04 Company To Provide Stock....................................51
Section 10.05 Adjustment Of Conversion Rate...............................51
Section 10.06 No Adjustment...............................................55
Section 10.07 Other Adjustments...........................................55
Section 10.08 Adjustments For Tax Purposes................................56
Section 10.09 Notice Of Adjustment........................................56
Section 10.10 Notice Of Certain Transactions..............................56
Section 10.11 Effect Of Reclassifications, Consolidations, Mergers,
Binding Share Exchanges Or Sales On Conversion
Privilege.................................................56
Section 10.12 Trustee's Disclaimer........................................57
Section 10.13 Rights Distributions Pursuant To Stockholders' Rights
Plans.....................................................58
Section 10.14 Increased Conversion Rate Applicable to Certain Notes
Surrendered in Connection With Make-Whole Fundamental
Changes...................................................59
ARTICLE XI
SUBORDINATION
Section 11.01 Agreement To Subordinate...................................63
Section 11.02 Certain Definitions........................................63
Section 11.03 Liquidation; Dissolution; Bankruptcy.......................63
Section 11.04 Default On Designated Senior Indebtedness..................64
Section 11.05 Acceleration Of Securities.................................65
Section 11.06 When Distribution Must Be Paid Over........................65
Section 11.07 Notice By The Company......................................65
Section 11.08 Subrogation................................................65
Section 11.09 Relative Rights............................................66
Section 11.10 Subordination May Not Be Impaired By The Company...........66
Section 11.11 Distribution Or Notice To Representative...................66
Section 11.12 Rights Of Trustee And Paying Agent.........................67
ARTICLE XII
TAX TREATMENT
Section 12.01 Tax Treatment..............................................67
ARTICLE XIII
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls...............................68
Section 13.02 Notices....................................................68
Section 13.03 Communication By Holders With Other Holders................69
Section 13.04 Certificate And Opinion As To Conditions Precedent.........69
Section 13.05 Statements Required In Certificate Or Opinion..............69
Section 13.06 Rules By Trustee And Agents................................70
Section 13.07 Legal Holidays.............................................70
Section 13.08 Duplicate Originals........................................70
Section 13.09 Governing Law..............................................70
Section 13.10 No Adverse Interpretation Of Other Agreements..............70
Section 13.11 Successors.................................................70
Section 13.12 Separability...............................................71
Section 13.13 Table Of Contents, Headings, Etc...........................71
Section 13.14 Calculations In Respect Of The Securities..................71
EXHIBIT A FORM OF GLOBAL SECURITY
EXHIBIT B-1 FORM OF PRIVATE PLACEMENT LEGEND
EXHIBIT B-2 FORM OF TAX LEGEND
EXHIBIT B-3 FORM OF LEGEND FOR GLOBAL SECURITY
EXHIBIT C FORM OF NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
INDENTURE, dated as of March 15, 2005, between Playboy Enterprises,
Inc., a corporation organized under the laws of Delaware (the "Company"), and
LaSalle Bank National Association, a national banking association organized
under the laws of the United States, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 3.00%
Convertible Senior Subordinated Notes due 2025 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
The term "additional interest" has the meaning ascribed to it in the
Registration Rights Agreement.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
this purpose, "control" shall mean the power to direct the management and
policies of a person through the ownership of securities, by contract or
otherwise.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interests therein, the
rules and procedures of the Depositary for such Global Security, in each case
to the extent applicable to such transaction and as in effect from time to
time.
"Bid Solicitation Agent" means a Company-appointed agent that
determines the Trading Price as set forth in Article X and paragraph 10 of the
Securities.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of,
or other equity interests in, such Person and all warrants or options to
acquire such capital stock or equity interests.
"Class A Common Stock" means the Class A Common Stock of the par
value of One Cent ($.01) per share of the Company or such other Capital Stock
of the Company into which the Class A Common Stock is reclassified or changed.
"Closing Sale Price" of the Common Stock on any Trading Day means the
closing per share sale price (or if no closing per share sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on such
Trading Day (a) on the U.S. principal national securities exchange on which
the Common Stock is listed; (b) if the Common Stock is not listed on a U.S.
national or regional securities exchange, as reported by an automated
quotation system administered by the National Association of Securities
Dealers, Inc. on which the Common Stock is then quoted; or (c) if not so
listed or quoted, as reported or quoted on the principal other exchange or
market on which the Common Stock is then listed or traded. In the absence of a
listing, quotation or report, the Closing Sale Price shall be such price as
the Company shall in good faith reasonably determine as most accurately
reflecting the price that a fully informed buyer, acting on his own accord,
would pay to a fully informed seller, acting on his own accord in an
arms-length transaction, for a share of the Common Stock on such Trading Day.
"Common Stock" means the Class B Common Stock of the par value of One
Cent ($.01) per share, of the Company, or such other Capital Stock of the
Company into which the Common Stock is reclassified or changed.
"Company" means the party named as such above until a successor
replaces it pursuant to the applicable provisions hereof and thereafter means
the successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"Company Order" or "Company Request" means a written request or order
signed on behalf of the Company by an Officer and delivered to the Trustee.
"Contingent Interest Period" has the meaning set forth in paragraph 1
of the Securities.
"Contingent Interest" has the meaning set forth in paragraph 1 of the
Securities.
"Conversion Notice" has the meaning set forth in paragraph 10 of the
Securities.
"Conversion Rate" shall initially be 58.7648 shares of Common Stock
per $1,000 principal amount of Securities, subject to adjustment as provided
in Article X.
"Conversion Price" means, as of any date of determination, the dollar
amount derived by dividing one thousand dollars ($1,000) by the Conversion
Rate in effect on such date.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 13.02 or such other address as the Trustee
may give notice of to the Company.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in
(1) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (2) the statements and
pronouncements of the Financial Accounting Standards Board, and (3) such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Holder" or "Securityholder" means a person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" of a person means the principal of, premium, if any,
and interest on, and all other obligations in respect of (a) all indebtedness
of such person for borrowed money (including all indebtedness evidenced by
notes, bonds, debentures or other securities), (b) all obligations (other than
trade payables) incurred by such person in the acquisition (whether by way of
purchase, merger, consolidation or otherwise and whether by such person or
another person) of any business, real property or other assets, (c) all
reimbursement obligations of such person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
person, (d) all capital lease obligations of such person required to be
recorded as such under GAAP, (e) all net obligations of such person under
interest rate swap, currency exchange or similar agreements of such person,
(f) all obligations and other liabilities, contingent or otherwise, under any
lease or related document, including a purchase agreement, conditional sale or
other title retention agreement, in connection with the lease of real property
or improvements thereon (or any personal property included as part of any such
lease) which provides that such person is contractually obligated to purchase
or cause a third party to purchase the leased property or pay an agreed-upon
residual value of the leased property, including such person's obligations
under such lease or related document to purchase or cause a third party to
purchase such leased property or pay an agreed-upon residual value of the
leased property to the lessor, (g) guarantees by such person of indebtedness
described in clauses (a) through (f) of another person, and (h) all renewals,
extensions, refundings, deferrals, restructurings, amendments and
modifications of any indebtedness, obligation, guarantee or liability of the
kind described in clauses (a) through (g).
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Purchasers" means UBS Securities LLC, Banc of America
Securities LLC and Bear, Xxxxxxx & Co. Inc.
"Issue Date" means March 15, 2005.
"Make-Whole Fundamental Change" means a Qualifying Asset Sale or a
Qualifying Business Combination that occurs before March 15, 2012; provided,
that at least 10% of the consideration (excluding cash payments for fractional
shares or pursuant to statutory appraisal rights) for the Common Stock in such
Qualifying Asset Sale or Qualifying Business Combination consists of any
combination of cash or securities (or other property) that are neither (A)
traded on a U.S. national securities exchange or quoted on the Nasdaq National
Market nor (B) scheduled to be so traded or quoted immediately after such
Qualifying Asset Sale or Qualifying Business Combination; and further
provided, in the case of a Qualifying Asset Sale, that, as a result of or in
connection therewith, as part of a transaction or series of related
transactions, all or substantially all of the Common Stock is exchanged for,
converted into, acquired for or constitutes solely the right to receive stock,
other securities, other property, assets or cash.
"Maturity Date" means March 15, 2025.
"Offering Memorandum" means the Company's offering memorandum, dated
March 9, 2005, relating to the Securities.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Executive Vice President, any Senior Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary
of the Company.
"Officer's Certificate" means a certificate signed by an Officer.
"Opinion of Counsel" means a written opinion from legal counsel who
may be (i) the General Counsel of the Company, (ii) another employee of the
Company who is then licensed to practice law in any State of the United States
and who is reasonably acceptable to the Trustee, or (iii) any other counsel
who is reasonably acceptable to the Trustee.
"Option" means the Initial Purchasers' option to acquire up to
$15,000,000 aggregate principal amount of additional Securities ("Additional
Securities") to cover over-allotments as provided for in the Purchase
Agreement.
"Person" and, unless the context otherwise requires, "person" mean
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or other agency or political subdivision thereof.
"Principal" means any of Xxxx X. Xxxxxx or the Xxxx X. Xxxxxx 1991
Trust or any other trust created by Xxxx X. Xxxxxx for his benefit and its
successor trusts, acting by its trustees, or in the event of Xxxx X. Xxxxxx'x
death, the Xxxx X. Xxxxxx 1991 Trust and its successor trusts or any other
trust created by Xxxx X. Xxxxxx for his benefit and its successor trusts,
acting by their trustees; the estate of Xxxx X. Xxxxxx, acting by its personal
representatives; the Xxxx X. Xxxxxx Foundation, acting by its directors; the
beneficiaries of the Xxxx X. Xxxxxx 1991 Trust and its successor trusts; the
beneficiaries of the estate of Xxxx X. Xxxxxx; or the heirs at law or
descendants of Xxxx X. Xxxxxx or trusts created for their benefit.
"Public Acquirer Fundamental Change" means an acquisition of the
Company pursuant to a Qualifying Asset Sale or a Qualifying Business
Combination, where the acquirer in such Qualifying Asset Sale or Qualifying
Business Combination has a class of common stock ("Public Acquirer Common
Stock") that either (A) is traded on a national securities exchange or quoted
on the Nasdaq National Market or (B) will be so traded or quoted when issued
or exchanged in connection with such Qualifying Asset Sale or Qualifying
Business Combination. If an acquirer does not itself have a class of common
stock (or American Depository Shares representing such common stock)
satisfying the foregoing requirement, it will be deemed to have Public
Acquirer Common Stock if either (A) a direct or indirect majority-owned
subsidiary of acquirer or (B) a corporation that directly or indirectly owns
at least a majority of the acquirer, has a class of common stock (or American
Depository Shares representing such common stock) satisfying the foregoing
requirement; in such case, all references to Public Acquirer Common Stock
shall refer to such class of common stock. "Majority-owned" for these purposes
means having "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of more than fifty percent (50%) of the Voting Stock of the
entity.
"Purchase Agreement" means the Purchase Agreement dated March 9, 2005
between the Company and the Initial Purchasers.
"Purchase Notice" means a Purchase Notice in the form set forth in
the Securities.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A.
"Redemption Date" means the date specified for Redemption of the
Securities in accordance with the terms of the Securities and this Indenture.
"Redemption Price" means, with respect to a Security to be redeemed
by the Company in accordance with Article III, one hundred percent (100%) of
the outstanding principal amount of such Security to be redeemed.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof between the Company and the Initial
Purchasers.
"Related Party" means (1) any controlling stockholder, partner,
member, 80% (or more) owned subsidiary, or spouse, descendant, or beneficiary
of any Principal; or (2) the Xxxx X. Xxxxxx 1991 Trust and its successor
trusts, acting by their trustees; any other trust created by Xxxx X. Xxxxxx
for his benefit and its successor trusts, acting by their trustees; the Xxxx
X. Xxxxxx Foundation; any other trust established by a Principal for the
primary benefit of a Principal or his or her spouse, descendants, or heirs at
law; any other charitable foundation created by Xxxx X. Xxxxxx; and any
corporation, partnership, limited liability company, or other entity, the
stockholders, partners, members, owners, or persons beneficially holding an
80% or more controlling interest of which consist of any one or more
Principals and/or such persons referred to in the immediately preceding clause
(1).
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer of the Trustee within the Corporate Trust Services (or
any successor unit) of the Trustee located at the Corporate Trust Office of
the Trustee who has direct responsibility for the administration of this
Indenture and, for the purposes of Sections 7.01(C)(ii), 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.
"Restricted Security" means a Security that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any
Security constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities" means the 3.00% Convertible Senior Subordinated Notes
due 2025 issued by the Company pursuant to this Indenture.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Security Agent" means any Registrar, Paying Agent, Conversion Agent,
Bid Solicitation Agent or co-Registrar or co-agent.
"Significant Subsidiary" with respect to any person means any
subsidiary of such person that constitutes a "significant subsidiary" within
the meaning of Rule 1-02(w) of Regulation S-X under the Exchange Act, as such
regulation is in effect on the date of this Indenture.
"Subsidiary" means (i) a corporation a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by the Company, by one or more
subsidiaries of the Company or by the Company and one or more of its
subsidiaries or (ii) any other person (other than a corporation) in which the
Company, one or more its subsidiaries or the Company and one or more its
subsidiaries, directly or indirectly, at the date of determination thereof,
have at least majority ownership interest.
"TIA" means the U.S. Trust Indenture Act of 1939, as amended and in
effect from time to time.
"Trading Day" means a day during which trading in securities
generally occurs on the principal U.S. national securities exchange on which
the Common Stock is then listed or, if the Common Stock is not then listed on
a U.S. national securities exchange, on an automated quotation system
administered by the National Association of Securities Dealers, Inc. on which
the Common Stock is then quoted or, if the Common Stock is not then listed on
a U.S. national securities exchange or quoted on an automated quotation system
administered by the National Association of Securities Dealers, Inc., on the
principal other exchange or market on which the Common Stock is then listed or
traded.
"Trading Price" means, on any date, the average of the secondary
market bid quotations for the Securities obtained by the Bid Solicitation
Agent on behalf of the Company for five million dollars ($5,000,000) principal
amount of Securities at approximately 4:00 p.m., New York City time, on such
date, from three (3) independent, nationally recognized securities dealers
selected by the Company; provided, that if the Bid Solicitation Agent on
behalf of the Company can reasonably obtain only two (2) such bids, then the
average of such two (2) bids shall instead be used; provided further, that if
the Bid Solicitation Agent on behalf of the Company can reasonably obtain only
one (1) such bid, then such bid shall instead be used; provided further, that
if, on a given date, the Bid Solicitation Agent on behalf of the Company
cannot reasonably obtain at least one (1) such bid, or if, in the reasonable,
good faith judgment of the Board of Directors the bid quotation or quotations
so obtained by the Bid Solicitation Agent on behalf of the Company are not
indicative of the secondary market value of the Securities, then, in each
case, the Trading Price per $1,000 principal amount of Securities on the such
date of determination shall be deemed to be equal to ninety five percent (95%)
of the product of (I) the Conversion Rate in effect on such date and (II) the
Closing Sale Price on such date.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions hereof and thereafter
means the successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.
"Voting Stock" of any Person means the total voting power of all
classes of the Capital Stock of such Person entitled to vote generally in the
election of directors of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Acquirer Stock Conversion Right Adjustment" ........................ 10.14
"Acquisition of Voting Control" ..................................... 3.09
"Act" ............................................................... 9.04
"Additional Securities".............................................. 1.01
"Agent".............................................................. 11.02
"Aggregate Amount"................................................... 10.05
"Applicable Increase"................................................ 10.14
"Applicable Price"................................................... 10.14
"Bankruptcy Law"..................................................... 6.01
"Business Day"....................................................... 13.07
"Change in Control".................................................. 3.09
"Conversion Agent"................................................... 2.03
"Conversion Date".................................................... 10.02
"Conversion Value"................................................... 10.01
"Conversion Value Determination Date"................................ 10.02
"Custodian".......................................................... 6.01
"Declaration Date"................................................... 10.05
"Designated Senior Indebtedness"..................................... 11.02
"Determination Date"................................................. 10.05
"Distribution Date".................................................. 10.05
"Effective Date"..................................................... 10.14
"Event of Default"................................................... 6.01
"Ex Date"............................................................ 10.05
"Expiration Date".................................................... 10.05
"Expiration Time".................................................... 10.05
"Fundamental Change"................................................. 3.09
"Fundamental Change Notice".......................................... 3.09
"Fundamental Change Repurchase Date"................................. 3.09
"Fundamental Change Repurchase Price"................................ 3.09
"Fundamental Change Repurchase Right"................................ 3.09
"Global Security".................................................... 2.01
"Legal Holiday"...................................................... 13.07
"Make-Whole Consideration"........................................... 10.14
"Make-Whole Conversion Rate Adjustment" ............................. 10.14
"Maximum Conversion Rate"............................................ 10.05
"Net Share Amount"................................................... 10.02
"Net Shares"......................................................... 10.02
"Net Share Settlement Conversion Value".............................. 10.02
"Non-Payment Default"................................................ 11.04
"Notice of Default".................................................. 6.01
"Note Measurement Period"............................................ 10.01
"Option Purchase Date"............................................... 3.08
"Option Purchase Notice"............................................. 3.08
"Option Purchase Price".............................................. 3.08
"Participants"....................................................... 2.15
"Paying Agent"....................................................... 2.03
"Payment Blockage Notice"............................................ 11.04
"Payment Blockage Period"............................................ 11.04
"Payment Default".................................................... 11.04
"Physical Securities"................................................ 2.01
"Principal Return"................................................... 10.02
"Private Placement Legend"........................................... 2.17
"Public Acquirer Common Stock" ...................................... 1.01
"Purchase at Holder's Option"........................................ 3.01
"Purchased Shares"................................................... 10.05
"Qualifying Asset Sale" ............................................. 3.09
"Qualifying Business Combination" ................................... 3.09
"Redemption"......................................................... 3.01
"Reference Property"................................................. 10.11
"Registrar".......................................................... 2.03
"Representative"..................................................... 11.02
"Repurchase Upon Fundamental Change"................................. 3.01
"Resale Restriction Termination Date"................................ 2.17
"Rights"............................................................. 10.05
"Senior Credit Agreement"............................................ 11.02
"Senior Indebtedness"................................................ 11.02
"Ten-Day Weighted Average Price Per Share"........................... 10.02
"Termination of Trading"............................................. 3.09
"Trading Price Condition"............................................ 10.01
"Underlying Shares".................................................. 10.05
"Volume-Weighted Average Price"...................................... 10.02
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.
All terms used in this Indenture that are defined by the TIA, defined
by the TIA by reference to another statute or defined by SEC rule under the
TIA and not otherwise defined herein have the meanings so assigned to them.
Section 1.04 Rules Of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) "or" is not exclusive;
(iii) words in the singular include the plural and in the plural
include the singular;
(iv) the term "interest" includes Contingent Interest and additional
interest unless the context otherwise requires;
(v) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions, as applicable, of this Indenture; and the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision of this Indenture; and
(vi) references to currency shall mean the lawful currency of the
United States of America, unless the context requires otherwise.
ARTICLE II
THE SECURITIES
Section 2.01 Form And Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form set forth in Exhibit A, which is incorporated in
and forms a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in Exhibit A (the "Global Security"), deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and bearing the legends
set forth in Exhibits X-0, X-0 and B-3. The aggregate principal amount of the
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary, as
hereinafter provided; provided that in no event shall the aggregate principal
amount of the Global Security or Securities exceed $100,000,000 (or
$115,000,000 if the Initial Purchasers elect to purchase all of the Additional
Securities pursuant to the Option).
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.15 may be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Exhibit A
(the "Physical Securities") and, if applicable, bearing any legends required
by Section 2.17.
Section 2.02 Execution And Authentication.
One Officer shall sign the Securities for the Company by manual or
facsimile signature.
A Security's validity shall not be affected by the failure of an
Officer whose signature is on such Security to hold, at the time the Security
is authenticated, the same office at the Company.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Upon a written order of the Company signed by one Officer, the
Trustee shall authenticate Securities for original issue in the aggregate
principal amount of $100,000,000 and such additional principal amount, if any,
as shall be determined pursuant to the next sentence of this Section 2.02.
Upon receipt by the Trustee of an Officer's Certificate stating that the
Initial Purchasers have elected to purchase from the Company a specified
principal amount of Additional Securities, not to exceed $15,000,000, pursuant
to the Option, the Trustee shall authenticate and deliver such specified
principal amount of Additional Securities to or upon the written order of the
Company signed as provided in the immediately preceding sentence. The Trustee
must receive such Officer's Certificate not later than the proposed date for
delivering such Additional Securities. The aggregate principal amount of
Securities outstanding at any time may not exceed $100,000,000 except as
provided in this Section 2.02.
Upon a written order of the Company signed by an Officer, the Trustee
shall authenticate Securities not bearing the Private Placement Legend to be
issued to the transferee when sold pursuant to an effective registration
statement under the Securities Act as set forth in Section 2.16(B).
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such authenticating
agent. An authenticating agent has the same rights as a Security Agent to deal
with the Company and its Affiliates.
If a written order of the Company pursuant to this Section 2.02 has
been, or simultaneously is, delivered, any instructions by the Company to the
Trustee with respect to endorsement, delivery or redelivery of a Security
issued in global form shall be in writing but need not comply with Section
13.04 hereof and need not be accompanied by an Opinion of Counsel.
The Securities shall be issuable only in registered form without
interest coupons and only in minimum denominations of $1,000 principal amount
and integral multiples thereof. Notwithstanding anything to the contrary
contained herein or in the Securities, the principal amount of each Security
(including any Security to be issued, re-issued or exchanged pursuant to a
partial conversion, redemption, purchase or repurchase of the Securities)
shall be $1,000 or more at all times, and the Company shall not be required to
issue any Securities in the principal amount of less than $1,000.
Section 2.03 Registrar, Paying Agent And Conversion Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency in
the Borough of Manhattan, The City of New York, where Securities may be
presented for payment ("Paying Agent") and an office or agency in the Borough
of Manhattan, The City of New York, 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 appoint or
change one or more co-Registrars, one or more additional paying agents and one
or more additional conversion agents without notice and may act in any such
capacity on its own behalf. The term "Registrar" includes any co-Registrar;
the term "Paying Agent" includes any additional paying agent; and the term
"Conversion Agent" includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Security Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture that relate to such Security Agent. The
Company shall notify the Trustee of the name and address of any Security Agent
not a party to this Indenture. If the Company fails to maintain a Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent, Bid
Solicitation Agent, Registrar and Conversion Agent.
Section 2.04 Paying Agent To Hold Money In Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys and other property held by the
Paying Agent for the payment of the Securities, and shall notify the Trustee
of any Default by the Company in making any such payment. While any such
Default continues, the Trustee may require a Paying Agent to pay all money and
other property held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money and other property held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent shall have no further
liability for such money and other property. If the Company acts as Paying
Agent, it shall segregate and hold as a separate trust fund all money and
other property held by it as Paying Agent.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before each interest payment date 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.
Subject to Sections 2.15 and 2.16 hereof, where Securities are
presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transaction are met. To permit registrations of
transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. The Company or the Trustee, as the case may be, shall not
be required to exchange or register the transfer of any Security (i) for a
period of fifteen (15) days before selecting, pursuant to Section 3.03,
Securities to be redeemed or (ii) during the period beginning at the opening
of business fifteen (15) days before the mailing of a notice of redemption of
the Securities selected for Redemption under Section 3.04 and ending at the
close of business on the day of such mailing or (iii) that has been selected
for Redemption or for which a Purchase Notice has been delivered, and not
withdrawn, in accordance with this Indenture, except the unredeemed or
unrepurchased portion of Securities being redeemed or repurchased in part.
No service charge shall be made for any transfer, exchange or
conversion of Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge that may
be imposed in connection with any transfer, exchange or conversion of
Securities, other than exchanges pursuant to Sections 2.10, 9.05 or 10.02, or
Article III, not involving any transfer.
Section 2.07 Replacement Securities.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Security upon surrender to the
Trustee of the mutilated Security, or upon delivery to the Trustee of evidence
of the loss, destruction or theft of the Security satisfactory to the Trustee
and the Company. In the case of lost, destroyed or wrongfully taken
Securities, if required by the Trustee or the Company, an indemnity must be
provided by the Holder that is reasonably satisfactory to the Trustee and the
Company to protect the Company, the Trustee or any Security Agent from any
loss which any of them may suffer if a Security is replaced. The Trustee may
charge for its expenses in replacing a Security.
In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security when due.
Every replacement Security is an additional obligation of the Company
only as provided in Section 2.08.
Section 2.08 Outstanding Securities.
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those converted, those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.08 as not outstanding. Except to the extent provided in Section 2.09, a
Security does not cease to be outstanding because the Company or one of its
Subsidiaries or Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that a protected purchaser holds the replaced Security.
If the Paying Agent (other than the Company) holds on an Option
Purchase Date, Redemption Date, Fundamental Change Repurchase Date or Maturity
Date, money sufficient to pay the aggregate Option Purchase Price, Redemption
Price, Fundamental Change Repurchase Price or principal amount, as the case
may be, with respect to all Securities to be redeemed, purchased or paid upon
Purchase at Holder's Option, Redemption, Repurchase Upon Fundamental Change or
maturity, as the case may be, in each case plus, if applicable, accrued and
unpaid interest, if any, payable as herein provided upon Purchase at Holder's
Option, Redemption, Repurchase Upon Fundamental Change or maturity, then
(unless there shall be a Default in the payment of such aggregate Option
Purchase Price, Redemption Price, Fundamental Change Repurchase Price or
principal amount, or of such accrued and unpaid interest) on and after such
date such Securities shall be deemed to be no longer outstanding, interest on
such Securities shall cease to accrue, and such Securities shall be deemed
paid whether or not such Securities are delivered to the Paying Agent.
Thereafter, all rights of the Holders of such Securities shall terminate with
respect to such Securities, other than the right to receive the Option
Purchase Price, Redemption Price, Fundamental Change Repurchase Price
(including any applicable Make-Whole Consideration) or principal amount, as
the case may be, plus, if applicable, such accrued and unpaid interest, in
accordance with this Indenture.
If a Security is converted in accordance with Article X, then, from
and after the time of such conversion on the Conversion Date, such Security
shall cease to be outstanding, and interest, if any, shall cease to accrue on
such Security.
Section 2.09 Securities Held By The Company Or An Affiliate.
In determining whether the Holders of the required aggregate
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or any of its Subsidiaries or
Affiliates shall be considered as though not outstanding, except that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities which a Responsible
Officer of the Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be considered to be
outstanding for purposes of this Section 2.09 if the pledgee establishes, to
the satisfaction of the Trustee, the pledgee's right so to act with respect to
such Securities and that the pledgee is not, and is not acting at the
direction or on behalf of, the Company, any other obligor on the Securities,
an Affiliate of the Company or an affiliate of any such other obligor. In the
event of a dispute as to whether the pledgee has established the foregoing,
the Trustee may rely on the advice of counsel or on an Officer's Certificate.
Section 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, each temporary Security shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
in accordance with the terms of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward
to the Trustee any Securities surrendered to them for Redemption, Purchase at
Holder's Option, Repurchase Upon Fundamental Change, transfer, exchange,
payment or conversion. The Trustee shall promptly cancel all Securities
surrendered for transfer, exchange, payment, (whether at maturity, upon
Redemption, upon a Purchase at Holder's Option, or upon a Repurchase Upon
Fundamental Change) conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation
(other than in connection with registrations of transfer or exchange pursuant
to Section 2.06) or that any Securityholder has converted pursuant to Article
X. All cancelled Securities held by the Trustee shall be destroyed, and
certification of their destruction shall be delivered by the Trustee to the
Company unless the Company shall direct, by Company Order, that cancelled
Securities be returned to it.
Section 2.12 Defaulted Interest.
If and to the extent the Company defaults in a payment of interest on
the Securities, the Company shall pay in cash the defaulted interest in any
lawful manner plus, to the extent not prohibited by applicable law, statute or
regulation, interest on such defaulted interest at the rate provided in the
Securities. The Company may pay the defaulted interest (plus interest on such
defaulted interest) to the persons who are Securityholders on a subsequent
special record date. The Company shall fix such record date and payment date.
At least seven (7) calendar days before the record date, the Company shall
mail to Securityholders a notice that states the record date, payment date and
amount of interest to be paid. Upon the due payment in full of such defaulted
interest (plus interest, if any, on such defaulted interest ), such defaulted
interest shall no longer be payable pursuant to this Section 2.12.
Section 2.13 CUSIP Numbers.
The Company in issuing the Securities may use one or more "CUSIP,"
"ISIN" or other similar numbers, and, if so, the Trustee shall use such CUSIP,
ISIN or other similar numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the
CUSIP, ISIN or other similar numbers printed on the notice or on the
Securities; provided further, that reliance may be placed only on the other
identification numbers printed on the Securities, and the effectiveness of any
such notice shall not be affected by any defect in, or omission of, such
CUSIP, ISIN or other similar numbers. The Company shall promptly notify the
Trustee of any change in such CUSIP, ISIN or other similar numbers.
Section 2.14 Deposit Of Moneys And Property.
Prior to 11:00 a.m., New York City time, on each interest payment
date, Maturity Date or Redemption Date, the Company shall have deposited with
a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 2.04) money, in funds
immediately available on such date, sufficient to make cash payments due on
such interest payment date, Maturity Date or Redemption Date, as the case may
be, in a timely manner which permits the Paying Agent to remit payment to the
Holders on such interest payment date, Maturity Date or Redemption Date, as
the case may be. The Company shall make such deposits of funds, or, if
applicable, segregate and hold in trust funds, with respect to each Purchase
at Holder's Option or Repurchase Upon Fundamental Change in the manner set
forth in Section 3.08(C) or Section 3.09(C), respectively.
Section 2.15 Book-Entry Provisions For Global Securities.
(A) The Global Securities initially shall (i) be registered in the
name of the Depositary or the nominee of the Depositary, (ii) be delivered to
the Trustee as custodian for the Depositary and (iii) bear legends as set
forth in Section 2.17.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Indenture with respect to any Global Security held
on their behalf by the Depositary, or the Trustee as its custodian, or under
the Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
the Global Security for all purposes whatsoever. None of the Company, the
Trustee or any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, any interests in a Global Security other than
interests as a record holder thereof, or for maintaining, supervising or
reviewing any records relating to beneficial ownership interests in a Global
Security. The Company, the Trustee and each agent of the Company or the
Trustee shall be entitled to deal with the Depositary, and any nominee
thereof, for all purposes of this Indenture relating to such Global Security
(including the payment of principal, interest, if any, amounts payable upon
conversion, the Option Purchase Price, if any, and Fundamental Change
Repurchase Price, if any, and the giving of instructions or directions by or
to the owner or holder of a beneficial ownership interest in such Global
Security) as the sole Holder of such Global Security and shall have no
obligations to the beneficial owners thereof. None of the Company, the Trustee
or any Security Agent shall have any responsibility or liability for any acts
or omissions of the Depositary with respect to such Global Security, for the
records of the Depositary, including records in respect of beneficial
ownership interests in respect of such Global Security, for any transactions
between the Depositary and any Participant or between or among the Depositary,
any Participant and/or any holder or owner of a beneficial interest in such
Global Security or for any transfers of beneficial interests in such Global
Security. 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 impair, as between the Depositary and Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(B) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. In addition, Physical Securities shall be transferred to all
beneficial owners, as identified by the Depositary, in exchange for their
beneficial interests in Global Securities only if (i) the Depositary notifies
the Company that the Depositary is unwilling or unable to continue as
depositary for any Global Security (or the Depositary ceases to be a "clearing
agency" registered under Section 17A of the Exchange Act) and a successor
Depositary is not appointed by the Company within ninety (90) days of such
notice or cessation or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a written request from the Depositary to issue
Physical Securities.
(C) In connection with the transfer of a Global Security in its
entirety to beneficial owners pursuant to Section 2.15(B), such Global
Security shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(D) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to Section
2.15(B) shall, except as otherwise provided by Section 2.16, bear the Private
Placement Legend.
(E) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
Section 2.16 Special Transfer Provisions.
(A) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, but except as provided
in Section 2.15(B), a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(B) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar or co-Registrar
shall deliver only Securities that bear the Private Placement Legend unless
(i) the requested transfer is after the Resale Restriction Termination Date,
(ii) there is delivered to the Trustee and the Company an Opinion of Counsel
(upon which Opinion of Counsel the Trustee may conclusively rely) reasonably
satisfactory to the Company and addressed to the Company to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or
(iii) such Security has been sold pursuant to an effective registration
statement under the Securities Act and the Holder selling such Securities has
delivered to the Registrar or co-Registrar a notice in the form of Exhibit C
hereto. Upon the effectiveness, under the Securities Act, of the "Shelf
Registration Statement" (as defined in the Registration Rights Agreement), the
Company shall deliver to the Trustee a notice of effectiveness, a Global
Security or Global Securities that do not bear the Private Placement Legend
and an authentication order in accordance with Section 2.02, and, if required
by the Depositary, the Company shall deliver to the Depositary a letter of
representations in a form reasonably acceptable to the Depositary. Upon the
effectiveness of any post-effective amendment to the "Shelf Registration
Statement" (as defined in the Registration Rights Agreement) and upon the
effectiveness, under the Securities Act, of any "Subsequent Shelf Registration
Statement" (as defined in the Registration Rights Agreement), the Company
shall deliver to the Trustee a notice of effectiveness. Upon any sale,
pursuant to a Shelf Registration Statement, of a beneficial interest in a
Global Security that theretofore constituted a Restricted Security and
delivery of appropriate evidence thereof to the Trustee, and upon any sale or
transfer of a beneficial interest in connection with which the Private
Placement Legend will be removed in accordance with this Indenture, the
Trustee shall increase the principal amount of the Global Security that does
not constitute a Restricted Security by the principal amount of such sale or
transfer and likewise reduce the principal amount of the Global Security that
does constitute a Restricted Security.
(C) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture and as permitted by applicable law.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time during
the Registrar's normal hours of operation upon the giving of reasonable
written notice to the Registrar.
(D) Transfers of Securities Held by Affiliates. Any certificate (i)
evidencing a Security that has been transferred to an Affiliate within two (2)
years after the Issue Date, as evidenced by a notation on the assignment form
for such transfer or in the representation letter delivered in respect thereof
or (ii) evidencing a Security that has been acquired from an Affiliate (other
than by an Affiliate) in a transaction or a chain of transactions not
involving any public offering, shall, until two (2) years after the last date
on which the Company or any Affiliate was an owner of such Security (or such
longer period of time as may be required under the Securities Act or
applicable state securities laws), in each case, bear the Private Placement
Legend, unless otherwise agreed by the Company (with written notice thereof to
the Trustee).
(E) Compliance with Transfer Restrictions. None of the Trustee or any
agent of the Company or the Trustee shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer that may be imposed under this Indenture with respect to the
Securities or under applicable law with respect to any transfer of any
interest in any such Security (including any transfers between or among the
Depositary, or its nominee, in respect of a Global Security, any Participant
or any owners or holders of beneficial interests in any such 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 such Securities or of this Indenture and to examine
the same to determine substantial compliance as to form with the express
requirements thereof.
Section 2.17 Legends.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the legend (the "Private Placement Legend") set
forth in Exhibit B-1 on the face thereof until after the second anniversary of
the later of (i) the Issue Date and (ii) the last date on which the Company or
any Affiliate was the owner of such Security (or any predecessor security) (or
such shorter period of time as permitted by Rule 144(k) under the Securities
Act or any successor provision thereunder) (or such longer period of time as
may be required under the Securities Act or applicable state securities laws,
as set forth in an Opinion of Counsel, unless otherwise agreed between the
Company and the Holder thereof) (such date, the "Resale Restriction
Termination Date").
Each Security shall bear the legend set forth in Exhibit B-2.
Each Global Security shall also bear the legend as set forth in
Exhibit B-3.
ARTICLE III
REDEMPTION AND REPURCHASE
Section 3.01 Right Of Redemption.
(A) A redemption of the Securities, as permitted by any provision of
this Indenture, shall be made:
(i) with respect to a repurchase at the Company's option, in
accordance with paragraphs 6 and 7 of the Securities (a
"Redemption"),
(ii) with respect to a repurchase at the Holder's option, in
accordance with paragraph 8 of the Securities (a "Purchase at
Holder's Option") and
(iii) with respect to any repurchase upon a Fundamental
Change, in accordance with paragraph 9 of the Securities (a
"Repurchase Upon Fundamental Change"),
in each case in accordance with the applicable provisions
of this Article III.
(B) The Company shall not have the right to redeem any Securities
prior to March 15, 2010. The Company shall have the right, at the Company's
option, on a Redemption Date which is on or after March 15, 2010, to redeem
all or any part of the Securities at a price payable in cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date, if the Closing Sale Price of the Common Stock for each of
20 or more consecutive Trading Days in a period of 30 consecutive Trading Days
exceeds 120% of the Conversion Price in effect on the 30th day before the
mailing of a notice of Redemption. The Company shall have the right, at the
Company's option, at any time, and from time to time, on a Redemption Date
which is on or after March 15, 2012, to redeem all or any part of the
Securities at a price payable in cash equal to the Redemption Price plus
accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company shall make at least ten (10) semi-annual interest payments with
respect to the Securities before the Company can redeem the Securities at its
option, as described above.
(C) Securities in denominations larger than $1,000 principal amount
may be redeemed in part but only in integral multiples of $1,000 principal
amount.
Section 3.02 Notices To Trustee.
If the Company elects to redeem Securities pursuant to paragraph 6 of
the Securities, it shall notify the Trustee in writing of the Redemption Date,
the applicable provision of this Indenture pursuant to which the Redemption is
to be made and the aggregate principal amount of Securities to be redeemed,
which notice shall be provided to the Trustee by the Company at least five (5)
days prior to the mailing, in accordance with Section 3.04, of the notice of
Redemption (unless a shorter notice period shall be satisfactory to the
Trustee).
Section 3.03 Selection Of Securities To Be Redeemed.
If the Company has elected to redeem less than all the Securities
pursuant to paragraph 6 of the Securities, the Trustee shall, within five (5)
Business Days after receiving the notice specified in Section 3.02, select the
Securities to be redeemed by lot, on a pro rata basis or in accordance with
any other method the Trustee considers fair and appropriate. The Trustee shall
make such selection from Securities then outstanding and not already to be
redeemed by virtue of having been previously called for Redemption. The
Trustee may select for Redemption portions of the principal amount of
Securities that have denominations larger than $1,000 principal amount.
Securities and portions of them that the Trustee selects for Redemption shall
be in amounts of $1,000 principal amount or integral multiples of $1,000
principal amount. The Trustee shall promptly notify the Company in writing of
the Securities selected for Redemption and the principal amount thereof to be
redeemed.
The Registrar need not register the transfer of or exchange any
Securities that have been selected for Redemption, except the unredeemed
portion of the Securities being redeemed in part (subject to the restrictions
set forth in Section 2.02). The Registrar need not issue, authenticate,
register the transfer of or exchange any Security for a period of fifteen (15)
days before selecting, pursuant to this Section 3.03, Securities to be
redeemed.
Section 3.04 Notice Of Redemption.
At least thirty (30) days but not more than sixty (60) days before a
Redemption Date, the Company shall mail, or cause to be mailed, by first-class
mail a notice of Redemption to each Holder whose Securities are to be
redeemed, at the address of such Holder appearing in the register of the
Registrar.
The notice shall identify the Securities and the aggregate principal
amount thereof to be redeemed pursuant to the Redemption and shall state:
(i) the Redemption Date;
(ii) the Redemption Price plus accrued and unpaid interest,
if any, to, but excluding, the Redemption Date;
(iii) the Conversion Rate and the Conversion Price;
(iv) the names and addresses of the Paying Agent and the
Conversion Agent;
(v) that Holders who want to convert Securities must satisfy
the requirements of Article X;
(vi) the paragraph of the Securities pursuant to which the
Securities are to be redeemed;
(vii) that Securities called for Redemption must be
surrendered to the Paying Agent to collect the Redemption Price plus
accrued and unpaid interest, if any, payable as herein provided upon
Redemption;
(viii) that, unless there shall be a Default in the payment
of the Redemption Price or accrued and unpaid interest, if any,
payable as herein provided upon Redemption, interest on Securities
called for Redemption ceases to accrue on and after the Redemption
Date, such Securities will cease to be convertible after the close of
business on the Business Day immediately preceding the Redemption
Date, and all rights of the Holders of such Securities shall
terminate on and after the Redemption Date, other than the right to
receive, upon surrender of such Securities and in accordance with
this Indenture, the Redemption Price and such accrued and unpaid
interest; and
(ix) the CUSIP, ISIN or other similar number or numbers, as
the case may be, of the Securities.
The right, pursuant to Article X, to convert Securities called for
Redemption shall terminate at the close of business on the Business Day
immediately preceding the Redemption Date, unless there shall be a Default in
the payment of the Redemption Price or accrued and unpaid interest, if any,
payable as herein provided upon Redemption.
At the Company's request, upon reasonable prior notice, the Trustee
shall mail the notice of Redemption in the Company's name and at the Company's
expense; provided, however, that the form and content of such notice shall be
prepared by the Company.
Section 3.05 Effect Of Notice Of Redemption.
Once notice of Redemption is mailed, Securities called for Redemption
shall become due and payable on the Redemption Date at the Redemption Price
plus accrued and unpaid interest to, but excluding, the Redemption Date, and,
on and after such Redemption Date (unless there shall be a Default in the
payment of the Redemption Price or such accrued and unpaid interest), such
Securities shall cease to bear interest, and all rights of the Holders of such
Securities shall terminate, other than the right to receive, upon surrender of
such Securities and in accordance with the next sentence, the Redemption Price
and such accrued and unpaid interest. Upon surrender to the Paying Agent of a
Security subject to Redemption, such Security shall be paid, to the Holder
surrendering such Security, at the Redemption Price plus accrued and unpaid
interest to, but excluding, the Redemption Date; provided, however, that if
the Redemption Date is an interest payment date, the interest becoming due on
such date shall be paid to the Holder of record of such Security at the close
of business on the record date for such interest payment and shall not be
included in the accrued and unpaid interest otherwise payable upon Redemption.
The Company shall make at least ten (10) semi-annual interest payments with
respect to the Securities before the Company can redeem the Securities at its
option.
If any Security shall not be fully and duly paid upon surrender
thereof for Redemption, the principal of, and accrued and unpaid interest on,
such Security shall, until paid, bear interest from, and including, the
Redemption Date at the rate borne by such Security on the principal amount of
such Security, and such Security shall continue to be convertible pursuant to
Article X.
Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to a Redemption if there has occurred
(prior to, on or after, as the case may be, the mailing of the notice of
Redemption specified in Section 3.04) and is continuing an Event of Default
(other than a Default in the payment of the Redemption Price or accrued and
unpaid interest, if any, payable as herein provided upon Redemption). The
Paying Agent shall promptly return to the respective Holders thereof any
Securities held by it during the continuance of such an Event of Default.
Section 3.06 Deposit Of Redemption Price.
Prior to 11:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust in accordance with Section 2.04)
money, in funds immediately available on the Redemption Date, sufficient to
pay the Redemption Price, plus accrued and unpaid interest to, but excluding,
the Redemption Date, of all Securities to be redeemed on that date. The Paying
Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.
Section 3.07 Securities Redeemed In Part.
Any Security to be submitted for Redemption only in part shall be
delivered pursuant to Section 3.05 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, of the
same tenor and in aggregate principal amount equal to the portion of such
Security not submitted for Redemption, subject to the restrictions set forth
in Section 2.02.
If any Security selected for partial Redemption is converted in part,
the principal of such Security subject to Redemption shall be reduced by the
principal amount of such Security that is converted, subject to the
restrictions set forth in Section 2.02.
Section 3.08 Purchase Of Securities At Option Of The Holder.
(A) At the option of the Holder thereof, Securities (or portions
thereof that are integral multiples of $1,000 in principal amount) shall be
purchased by the Company pursuant to paragraph 8 of the Securities on March
15, 2012, March 15, 2015 and March 15, 2020 (each, an "Option Purchase Date"),
at a purchase price, payable in cash, equal to one hundred percent (100%) of
the principal amount of the Securities (or such portions thereof) to be so
purchased (the "Option Purchase Price"), plus accrued and unpaid interest, if
any, to, but excluding, the applicable Option Purchase Date, upon:
(i) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice (as defined below), by
such Holder, at any time from 9:00 a.m., New York City time, on the
date that is twenty (20) Business Days prior to the applicable Option
Purchase Date until 5:00 p.m., New York City time, on the Business
Day immediately preceding the applicable Option Purchase Date, of a
Purchase Notice, in the form set forth in the Securities (or any
other form of written notice delivered in good faith and
substantially similar thereto), duly completed and signed, with
appropriate signature guarantee, stating:
(a) the certificate number(s) of the Securities
which the Holder will deliver to be purchased, if such
Securities are in the form of Physical Securities;
(b) the principal amount of Securities to be
purchased, which must be $1,000 or an integral multiple
thereof; and
(c) that such principal amount of Securities are to
be purchased as of the applicable Option Purchase Date
pursuant to the terms and conditions specified in paragraph
8 of the Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice, at any time after
delivery of such Purchase Notice, of such Securities (such Securities
to conform in all material respects to the description thereof in the
related Option Purchase Notice), together with all necessary
endorsements, such delivery being a condition to receipt by the
Holder of the Option Purchase Price therefor plus accrued and unpaid
interest, if any, payable as herein provided upon Purchase at
Holder's Option.
If such Securities are held in book-entry form through the
Depositary, the Purchase Notice shall comply with applicable procedures of the
Depositary.
Upon such delivery of Securities to the Company (if it is acting as
its own Paying Agent) or such Paying Agent, such Holder shall be entitled to
receive from the Company or such Paying Agent, as the case may be, a
nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has
delivered the Purchase Notice contemplated by this Section 3.08(A) to the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Option Purchase Notice shall
have the right to withdraw such Purchase Notice by delivery, at any time prior
to 5:00 p.m., New York City time, on the Business Day immediately preceding
the applicable Option Purchase Date, of a written notice of withdrawal to the
Company (if acting as its own Paying Agent) or the Paying Agent, which notice
shall contain the information specified in Section 3.08(B)(vii).
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(B) The Company shall give notice (the "Option Purchase Notice") on a
date not less than twenty (20) Business Days prior to each Option Purchase
Date to all Holders at their addresses shown in the register of the Registrar
and to beneficial owners as required by applicable law. Such notice shall
state:
(i) the Option Purchase Price plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date and
the Conversion Rate;
(ii) the names and addresses of the Paying Agent and the
Conversion Agent;
(iii) that Securities with respect to which a Purchase
Notice is given by a Holder may be converted pursuant to Article X,
if otherwise convertible in accordance with Article X, only if such
Purchase Notice has been withdrawn in accordance with this Section
3.08 or if there shall be a Default in the payment of such Option
Purchase Price or in accrued and unpaid interest, if any, payable as
herein provided upon Purchase at Holder's Option;
(iv) that Securities must be surrendered to the Paying Agent
to collect payment of the Option Purchase Price plus accrued and
unpaid interest, if any, payable as herein provided upon Purchase at
Holder's Option;
(v) that the Option Purchase Price, plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date, for
any Security as to which a Purchase Notice has been given and not
withdrawn will be paid as promptly as practicable, but in no event
more than three (3) Business Days, following the later of such Option
Purchase Date or the time of delivery of the Security as described in
clause (iv) above;
(vi) the procedures the Holder must follow to exercise
rights under this Section 3.08 (including the name and address of the
Paying Agent) and a brief description of those rights;
(vii) that a Holder will be entitled to withdraw its
election in the Purchase Notice if the Company (if acting as its own
Paying Agent) or the Paying Agent receives, at any time prior to 5:00
p.m., New York City time, on the Business Day immediately preceding
the applicable Option Purchase Date, or such longer period as may be
required by law, a letter or telegram, telex or facsimile
transmission (receipt of which is confirmed and promptly followed by
a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities
purchased by the Company on such Option Purchase Date pursuant to a
Purchase at Holder's Option, (III) the certificate number of such
Securities to be so withdrawn (if such Securities are in the form of
Physical Securities), (IV) the principal amount of the Securities of
such Holder to be so withdrawn, which amount must be $1,000 or an
integral multiple thereof and (V) the principal amount, if any, of
the Securities of such Holder that remain subject to the Purchase
Notice delivered by such Holder in accordance with this Section 3.08,
which amount must be $1,000 or an integral multiple thereof;
(viii) that, on and after the applicable Option Purchase
Date (unless there shall be a Default in the payment of such Option
Purchase Price or such accrued and unpaid interest), interest on
Securities subject to Purchase at Holder's Option will cease to
accrue, such Securities shall cease to be convertible pursuant to
Article X, and all rights of the Holders of such Securities shall
terminate, other than the right to receive, upon surrender of such
Securities and in accordance with this Section 3.08, the Option
Purchase Price and such accrued and unpaid interest; and
(ix) the CUSIP, ISIN or similar number or numbers, as the
case may be, of the Securities.
At the Company's request, upon reasonable prior notice, the Trustee
shall mail such Option Purchase Notice in the Company's name and at the
Company's expense; provided, however, that the Company shall prepare the form
and content of such Option Purchase Notice.
No failure of the Company to give an Option Purchase Notice shall
limit any Holder's right to exercise its rights to require the Company to
purchase such Holder's Securities pursuant to a Purchase at Holder's Option.
(C) Subject to the provisions of this Section 3.08, the Company shall
pay, or cause to be paid, the Option Purchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the applicable Option Purchase Date, with
respect to each Security subject to Purchase at Holder's Option to the Holder
of record thereof as promptly as practicable, but in no event more than three
(3) Business Days, following the later of the applicable Option Purchase Date
and the time such Security (together with all necessary endorsements) is
surrendered to the Paying Agent.
(D) Subject to the provisions of this Section 3.08, the Company shall
deposit with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with Section 2.04) money, in
immediately available funds, sufficient to pay the Option Purchase Price, plus
accrued and unpaid interest, if any, to, but excluding, such Option Purchase
Date, of all of the Securities that are to be purchased by the Company on such
Option Purchase Date pursuant to a Purchase at Holder's Option, which deposit
or segregation, as the case may be, shall occur as promptly as practicable,
but in no event later than 11:00 a.m., New York City time, on the date that is
the third Business Day following the later of such Option Purchase Date and
the time such Security is surrendered (together with all necessary
endorsements) to the Paying Agent. The Paying Agent shall return to the
Company, as soon as practicable, any money not required for that purpose.
(E) Once the Purchase Notice has been duly delivered in accordance
with this Section 3.08, the Securities to be purchased pursuant to the
Purchase at Holder's Option shall, on the applicable Option Purchase Date,
become due and payable at the Option Purchase Price (plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date) applicable
thereto, and, on and after such date (unless there shall be a Default in the
payment of the Option Purchase Price or such accrued and unpaid interest),
such Securities shall cease to bear interest, and all rights of the Holders of
such Securities shall terminate, other than the right to receive, in
accordance with this Section 3.08, the Option Purchase Price and such accrued
and unpaid interest.
(F) Securities with respect to which a Purchase Notice has been duly
delivered in accordance with this Section 3.08 may be converted pursuant to
Article X, if otherwise convertible in accordance with Article X, only if such
Purchase Notice has been withdrawn in accordance with this Section 3.08 or if
there shall be a Default in the payment of the Option Purchase Price or in the
accrued and unpaid interest, if any, payable as herein provided upon Purchase
at Holder's Option.
(G) If any Security shall not be paid upon surrender thereof for
Purchase at Holder's Option, the principal of, and accrued and unpaid interest
on, such Security shall, until paid, bear interest from, and including, the
applicable Option Purchase Date at the rate borne by such Security on the
principal amount of such Security, and such Security shall continue to be
convertible pursuant to Article X.
(H) Any Security which is to be submitted for Purchase at Holder's
Option only in part shall be delivered pursuant to this Section 3.08 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, of the same tenor and in aggregate principal amount
equal to the portion of such Security not submitted for Purchase at Holder's
Option.
(I) Notwithstanding anything herein to the contrary, there shall be
no purchase of any Securities pursuant to this Section 3.08 if there has
occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Purchase Notice) and is continuing
an Event of Default (other than a Default in the payment of the Option
Purchase Price or accrued and unpaid interest, if any, payable as herein
provided upon Purchase at Holder's Option or a Default arising from the
Company's failure to provide the applicable Option Purchase Notice). The
Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of an Event of Default (other
than a Default in the payment of the Option Purchase Price or such accrued and
unpaid interest).
(J) Notwithstanding anything herein to the contrary, if the option
granted to Holders to require the purchase of the Securities on the applicable
Option Purchase Date is determined to constitute a tender offer, the Company
shall comply with all applicable tender offer rules under the Exchange Act,
including Rule 13e-4 and Regulation 14E, and with all other applicable laws,
and will file a Schedule TO or any other schedules required under the Exchange
Act or any other applicable laws.
Section 3.09 Repurchase At Option Of Holder Upon A Fundamental Change.
(A) In the event any Fundamental Change (as defined below) shall
occur, each Holder of Securities shall have the right (the "Fundamental Change
Repurchase Right"), at such Holder's option, to require the Company to
repurchase all of such Holder's Securities (or portions thereof that are
integral multiples of $1,000 in principal amount), on a date selected by the
Company (the "Fundamental Change Repurchase Date"), which Fundamental Change
Repurchase Date shall be no later than thirty (30) days after the date the
Fundamental Change Notice (as defined below) is mailed in accordance with
Section 3.09(B), at a price, payable in cash, equal to one hundred percent
(100%) of the principal amount of the Securities (or portions thereof) to be
so repurchased (the "Fundamental Change Repurchase Price"), plus accrued and
unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase
Date, upon:
(i) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Fundamental Change Notice, no later than 5:00
p.m., New York City time, on the third (3rd) Business Day immediately
preceding the Fundamental Change Repurchase Date, of a Purchase
Notice, in the form set forth in the Securities (or any other form of
written notice delivered in good faith and substantially similar
thereto), duly completed and signed, with appropriate signature
guarantee, stating:
(a) the certificate number(s) of the Securities
which the Holder will deliver to be repurchased, if such
Securities are in the form of Physical Securities;
(b) the principal amount of Securities to be
repurchased, which must be $1,000 or an integral multiple
thereof; and
(c) that such principal amount of Securities are to
be repurchased pursuant to the terms and conditions
specified in paragraph 9 of the Securities and in this
Indenture; and
(ii) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Fundamental Change Notice, at any time after the
delivery of such Purchase Notice, of such Securities (such Securities
to conform in all material respects to the description thereof in the
related Purchase Notice), together with all necessary endorsements,
with respect to which the Fundamental Change Repurchase Right is
being exercised, such delivery being a condition to receipt by the
Holder of the Fundamental Change Repurchase Price therefor plus
accrued and unpaid interest, if any, payable as herein provided upon
Repurchase Upon Fundamental Change.
If such Securities are held in book-entry form through the
Depositary, the Purchase Notice shall comply with applicable procedures of the
Depositary.
Upon such delivery of Securities to the Company (if it is acting as
its own Paying Agent) or such Paying Agent, such Holder shall be entitled to
receive from the Company or such Paying Agent, as the case may be, a
nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has
delivered the Purchase Notice contemplated by this Section 3.09(A) to the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice
shall have the right to withdraw such Purchase Notice by delivery, at any time
prior to 5:00 p.m., New York City time, on the third (3rd) Business Day
immediately preceding the Fundamental Change Repurchase Date, of a written
notice of withdrawal to the Company (if acting as its own Paying Agent) or the
Paying Agent, which notice shall contain the information specified in Section
3.09(B)(xi).
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(B) Within ten (10) days after the occurrence of a Fundamental
Change, the Company shall mail, or cause to be mailed, to all Holders of
record of the Securities at their addresses shown in the register of the
Registrar, and to beneficial owners as required by applicable law, a notice
(the "Fundamental Change Notice") of the occurrence of such Fundamental Change
and the Fundamental Change Repurchase Right arising as a result thereof. The
Company shall deliver a copy of the Fundamental Change Notice to the Trustee
and shall publicly announce, through a reputable national newswire service,
the occurrence of each Fundamental Change.
Each Fundamental Change Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the Fundamental Change Repurchase Date;
(iv) the date by which the Fundamental Change Repurchase
Right must be exercised;
(v) the Fundamental Change Repurchase Price;
(vi) the names and addresses of the Paying Agent and the
Conversion Agent;
(vii) a description of the procedures which a Holder must
follow to exercise the Fundamental Change Repurchase Right;
(viii) that, in order to exercise the Fundamental Change
Repurchase Right, the Securities (together with all necessary
endorsements) must be surrendered for payment of the Fundamental
Change Repurchase Price plus accrued and unpaid interest, if any,
payable as herein provided upon Repurchase Upon Fundamental Change;
(ix) that the Fundamental Change Repurchase Price, plus
accrued and unpaid interest, if any, to, but excluding, the
Fundamental Change Repurchase Date, for any Security as to which a
Purchase Notice has been given and not withdrawn will be paid as
promptly as practicable, but in no event more than three (3) Business
Days, following the later of such Fundamental Change Repurchase Date
and the time of delivery of the Security (together with all necessary
endorsements) as described in clause (viii) above;
(x) that, on and after such Fundamental Change Repurchase
Date (unless there shall be a Default in the payment of such
Fundamental Change Repurchase Price or such accrued and unpaid
interest), interest on Securities subject to Repurchase Upon
Fundamental Change will cease to accrue, and all rights of the
Holders of such Securities shall terminate, other than the right to
receive, upon surrender of such Securities (together with all
necessary endorsements), the Fundamental Change Repurchase Price and
such accrued and unpaid interest;
(xi) that a Holder will be entitled to withdraw its election
in the Purchase Notice if the Company (if acting as its own Paying
Agent), or the Paying Agent receives, prior to 5:00 p.m., New York
City time, on the third (3rd) Business Day immediately preceding the
Fundamental Change Repurchase Date, or such longer period as may be
required by law, a letter or telegram, telex or facsimile
transmission (receipt of which is confirmed and promptly followed by
a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities
purchased by the Company on such Fundamental Change Repurchase Date
pursuant to a Repurchase Upon Fundamental Change, (III) the
certificate number of such Securities to be so withdrawn (if such
Securities are in the form of Physical Securities), (IV) the
principal amount of the Securities of such Holder to be so withdrawn,
which amount must be $1,000 or an integral multiple thereof and (V)
the principal amount, if any, of the Securities of such Holder that
remain subject to the Purchase Notice delivered by such Holder in
accordance with this Section 3.09, which amount must be $1,000 or an
integral multiple thereof;
(xii) the Conversion Rate and any adjustments to the
Conversion Rate that will result from such Fundamental Change;
(xiii) that Securities with respect to which a Purchase
Notice is given by a Holder may be converted pursuant to Article X
only if such Purchase Notice has been withdrawn in accordance with
this Section 3.09 or if there shall be a Default in the payment of
the Fundamental Change Repurchase Price or in the accrued and unpaid
interest, if any, payable as herein provided upon Repurchase Upon
Fundamental Change; and
(xiv) the CUSIP, ISIN or similar number or numbers, as the
case may be, of the Securities.
At the Company's request, upon reasonable prior notice, the Trustee
shall mail such Fundamental Change Notice in the Company's name and at the
Company's expense; provided, however, that the form and content of such
Fundamental Change Notice shall be prepared by the Company.
No failure of the Company to give a Fundamental Change Notice shall
limit any Holder's right to exercise a Fundamental Change Repurchase Right.
(C) Subject to the provisions of this Section 3.09, the Company shall
pay, or cause to be paid, the Fundamental Change Repurchase Price, plus
accrued and unpaid interest, if any, to, but excluding, the Fundamental Change
Repurchase Date, with respect to each Security as to which the Fundamental
Change Repurchase Right shall have been exercised to the Holder thereof as
promptly as practicable, but in no event more than three (3) Business Days,
following the later of the Fundamental Change Repurchase Date and the time
such Security is surrendered to the Paying Agent.
(D) Subject to the provisions of this Section 3.09, the Company shall
deposit with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with Section 2.04) money, in
funds immediately available, sufficient to pay the Fundamental Change
Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding,
the Fundamental Change Repurchase Date, of all of the Securities that are to
be repurchased by the Company on such Fundamental Change Repurchase Date
pursuant to a Repurchase Upon Fundamental Change which deposit or segregation,
as the case may be, shall occur as promptly as practicable but in no event
later than 11:00 a.m., New York City time, on the date that is the third
Business Day following the later of such Fundamental Change Repurchase Date
and the time such Security is surrendered (together with all necessary
endorsements) to the Paying Agent. The Paying Agent shall return to the
Company, as soon as practicable, any money not required for that purpose.
(E) Once the Fundamental Change Notice and the Purchase Notice have
been duly given in accordance with this Section 3.09, the Securities to be
repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the
Fundamental Change Repurchase Date, become due and payable at the Fundamental
Change Repurchase Price (plus accrued and unpaid interest, if any, to, but
excluding, the Fundamental Change Repurchase Date) applicable thereto, and, on
and after such date (unless there shall be a Default in the payment of the
Fundamental Change Repurchase Price or such accrued and unpaid interest), such
Securities shall cease to bear interest, and all rights of the Holders of such
Securities shall terminate, other than the right to receive, in accordance
with this Section 3.09, the Fundamental Change Repurchase Price and such
accrued and unpaid interest.
(F) Securities with respect to which a Purchase Notice has been duly
delivered in accordance with this Section 3.09 may be converted pursuant to
Article X, if otherwise convertible in accordance with Article X, only if such
Purchase Notice has been withdrawn in accordance with this Section 3.09 or if
there shall be a Default in the payment of the Fundamental Change Repurchase
Price or in the accrued and unpaid interest, if any, payable as herein
provided upon Repurchase Upon Fundamental Change.
(G) If any Security shall not be paid upon surrender thereof in
accordance with this Indenture for Repurchase Upon Fundamental Change, the
principal of, and accrued and unpaid interest on, such Security shall, until
paid, bear interest, payable in cash, from, and including, the Fundamental
Change Repurchase Date at the rate borne by such Security on the principal
amount of such Security, and such Security shall continue to be convertible
pursuant to Article X.
(H) Any Security which is to be submitted for Repurchase Upon
Fundamental Change only in part shall be delivered pursuant to this Section
3.09 (with, if the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, of the same tenor and in aggregate principal amount
equal to the portion of such Security not duly submitted for Repurchase Upon
Fundamental Change.
(I) Notwithstanding anything herein to the contrary, there shall be
no purchase of any Securities pursuant to this Section 3.09 if there has
occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Purchase Notice) and is continuing
an Event of Default (other than a Default in the payment of the Fundamental
Change Repurchase Price or accrued and unpaid interest, if any, payable as
herein provided upon Repurchase Upon Fundamental Change or a Default arising
from the Company's failure to provide the applicable Fundamental Change
Notice). The Paying Agent will promptly return to the respective Holders
thereof any Securities held by it during the continuance of an Event of
Default (other than a Default in the payment of the Fundamental Change
Repurchase Price or such accrued and unpaid interest).
(J) Notwithstanding anything herein to the contrary, if the option
granted to Holders to require the repurchase of the Securities upon the
occurrence of a Fundamental Change is determined to constitute a tender offer,
the Company shall comply with all applicable tender offer rules under the
Exchange Act, including Rule 13e-4 and Regulation 14E, and with all other
applicable laws, and will file a Schedule TO or any other schedules required
under the Exchange Act or any other applicable laws.
(K) As used herein and in the Securities, a "Fundamental Change"
shall be deemed to have occurred upon the occurrence, on or after the Issue
Date, of either a "Change in Control" or a "Termination of Trading."
(i) A "Change in Control" shall be deemed to have occurred
at such time as:
(a) any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange
Act), other than the Company, any Subsidiary, any employee
benefit plan of the Company or any Principal or Related
Party, acquires beneficial ownership (determined in
accordance with Rule 13d-3 under the Exchange Act), directly
or indirectly, of fifty percent (50%) or more of the Voting
Stock of the Company (such an event, an "Acquisition of
Voting Control"); or
(b) any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange
Act), other than the Company, any Subsidiary or any employee
benefit plan of the Company, acquires beneficial ownership
(determined in accordance with Rule 13d-3 under the Exchange
Act, directly or indirectly, of fifty-one percent (51%) or
more of the aggregate outstanding shares of Common Stock; or
(c) there occurs a sale, transfer, lease,
conveyance or other disposition of all or substantially all
of the property and assets of the Company to any "person" or
"group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act), including any group
acting for the purpose of acquiring, holding, voting or
disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act (such an occurrence, a
"Qualifying Asset Sale"); or
(d) the Company consolidates with, or merges with
or into, another person or any person consolidates with, or
merges with or into, the Company, unless either:
(1) the persons that "beneficially owned" (as
such term is used in Rule 13d-3 under the Exchange
Act), directly or indirectly, the shares of the
Common Stock or Class A Common Stock immediately
prior to such consolidation or merger,
"beneficially own," directly or indirectly,
immediately after such consolidation or merger,
shares of the surviving or continuing corporation's
Voting Stock representing at least a majority of
the total voting power of all outstanding classes
of the Voting Stock of the surviving or continuing
corporation; or
(2) at least ninety percent (90%) of the
consideration (other than cash payments for
fractional shares or pursuant to statutory
appraisal rights) in such consolidation or merger
consists of common stock and any associated rights
traded on a U.S. national securities exchange or
quoted on the Nasdaq National Market (or which will
be so traded or quoted when issued or exchanged in
connection with such consolidation or merger), and,
as a result of such consolidation or merger, the
Securities become convertible solely into such
common stock, associated rights and cash for
fractional shares
(any consolidation or merger described in this subsection
(d) that does not satisfy either of the conditions set forth
in clause (1) or clause (2) above being referred to in this
Indenture as a "Qualifying Business Combination"); or
(e) the following persons cease for any reason to
constitute a majority of the Board of Directors:
(A) individuals who on the Issue Date constituted
the Board of Directors;
(B) any new directors whose election to the Board
of Directors or whose nomination for election by the
Company's stockholders was approved by at least a majority
of the directors of the Company then still in office either
who were directors of the Company on the Issue Date or whose
election or nomination for election was previously so
approved; and
(C) any new directors elected by the Principal or
any Related Party and new directors whose election to the
Board of Directors or whose nomination for election by the
Company's stockholders was approved by at least a majority
of the Board of Directors; or
(f) the Company is liquidated or dissolved or the
holders of the Company's Capital Stock approve any plan or
proposal for the liquidation or dissolution of the Company.
(ii) A "Termination of Trading" shall be deemed to occur if
the Common Stock (or other common stock into which the Securities are
then convertible) is neither listed for trading on a U.S. national
securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.
ARTICLE IV
COVENANTS
Section 4.01 Payment Of Securities.
The Company shall pay all amounts due with respect to the Securities
on the dates and in the manner provided in the Securities and this Indenture,
which amounts, if payable hereunder in cash, shall be paid (A) in the case of
a Security that is in global form, by wire transfer of immediately available
funds to the account specified by the Holder hereof; or (B) in the case of a
Security that is held, other than in global form, by a Holder who is the
record holder of more than five million dollars ($5,000,000) aggregate
principal amount of Securities, by wire transfer of immediately available
funds to the account specified by such Holder or, if no such account is
specified, or if such Security is held, other than in global form, by a Holder
who is the record holder of five million dollars ($5,000,000) or less in
aggregate principal amount of Securities, by mailing a check to such Holder's
address shown in the register of the Registrar. All such amounts shall be
considered paid on the date due if the Paying Agent holds (or, if the Company
is acting as Paying Agent, the Company has segregated and holds in trust in
accordance with Section 2.04) on that date money sufficient to pay the amount
then due with respect to the Securities (unless there shall be a Default in
the payment of such amounts to the respective Holder(s)).
The Company shall pay interest on any overdue amount (including, to
the extent permitted by applicable law, overdue interest) at the rate borne by
the Securities.
Section 4.02 Maintenance Of Office Or Agency.
The Company will maintain, or cause to be maintained, in the Borough
of Manhattan, the City of New York, an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee, Registrar or
co-Registrar) where Securities may be surrendered for registration of transfer
or exchange, payment or conversion and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
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, or cause to be maintained,
an office or agency in the Borough of Manhattan, the City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as an agency of the Company in accordance with Section 2.03.
Section 4.03 Rule 144A Information And Annual Reports.
(A) At any time the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, the Company shall, provided any of the Securities or shares
of Common Stock issuable upon conversion thereof shall, at such time,
constitute "restricted securities" within the meaning of Rule 144(a)(3) under
the Securities Act, promptly provide to the Trustee and shall, upon request,
provide to any Holder, beneficial owner or prospective purchaser of Securities
or shares of Common Stock issued upon conversion of any Securities, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Securities or shares of Common
Stock issued upon conversion of any Securities pursuant to Rule 144A.
(B) The Company shall, to the extent required to comply with TIA
Section 314(a), deliver to the Trustee, within thirty (30) calendar days after
the Company files such annual reports, information, documents and other
reports with the SEC, copies of the Company's annual reports (which shall
contain audited financial statements of the Company) 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 Section 15(d) of
the Exchange Act; provided, however, that the Company shall not be required to
deliver to the Trustee any material for which the Company has sought and
received confidential treatment by the SEC. The Company also shall comply with
the other provisions of TIA Section 314(a) and shall furnish to the Trustee
copies of any other financial reports that the Company furnishes to its
stockholders generally.
Section 4.04 Compliance Certificate.
The Company shall deliver to the Trustee, within one hundred and
twenty (120) calendar days after the end of each fiscal year of the Company,
an Officer's Certificate stating whether or not the signatory to such
Officer's Certificate has actual knowledge of any Default or Event of Default
by the Company in performing any of its obligations under this Indenture or
the Securities. If such signatory does know of any such Default or Event of
Default, then such certificate shall describe such Default or Event of Default
and its status.
Section 4.05 Stay, Extension And Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (in each case, to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.06 Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence in accordance with its organizational documents; provided, that the
Company may consolidate with, or merge with or into, or sell, transfer, lease,
convey or otherwise dispose of all or substantially all of the property and
assets of the Company to, any Person in accordance with Section 5.01.
Section 4.07 Notice Of Default.
In the event that any Default or Event of Default shall occur, the
Company shall give prompt written notice of such Default or Event of Default,
and any remedial action proposed to be taken, to the Trustee.
Section 4.08 Limitation On Layering Indebtedness.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Indebtedness and senior in any respect in right
of payment to the Securities.
Section 4.09 Payment Of Additional Interest.
If additional interest is payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such additional interest
that is payable, (ii) the reason why such additional interest is payable and
(iii) the date on which such additional interest is payable. Unless and until
a Responsible Officer of the Trustee receives such a certificate, the Trustee
may assume without inquiry that no such additional interest is payable. If the
Company has paid additional interest directly to the Persons entitled to it,
the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.
Section 4.10 Payment Of Contingent Interest.
If Contingent Interest is payable pursuant to paragraph 1 of the
Security, the Company shall furnish to the Trustee an Officer's Certificate to
that effect, stating (i) the amount of such Contingent Interest per $1,000
principal amount of the Securities that is payable, (ii) the facts and
calculations supporting the determination of such amount and (iii) the date on
which such interest is payable. Unless and until a Responsible Officer of the
Trustee receives such Officer's Certificate, the Trustee may conclusively
presume without inquiry that no Contingent Interest is payable.
ARTICLE V
SUCCESSORS
Section 5.01 When Company May Merge, Etc.
The Company shall not consolidate with, or merge with or into, or
sell, transfer, lease, convey or otherwise dispose of all or substantially all
of the property and assets of the Company to, another person, whether in a
single transaction or series of related transactions, unless:
(A) either:
(i) such transaction or series of related transactions shall
be a merger or consolidation where the Company shall be the surviving
corporation; or
(ii) the surviving, resulting or transferee person (if other
than the Company) both (a) is a corporation, limited liability
company or other business entity organized and existing under the
laws of the United States, any State thereof or the District of
Columbia; and (b) assumes by supplemental indenture all the
obligations of the Company under the Securities and this Indenture;
and
(B) immediately after giving effect to such transaction or series of
related transactions, no Default or Event of Default shall exist.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officer's Certificate to the foregoing effect and,
if requested by the Trustee, an Opinion of Counsel (which may rely upon (i)
such Officer's Certificate as to the absence of Defaults and Events of Default
and as to factual matters and (ii) a certificate of the appropriate official
of the jurisdiction in which any such surviving, resulting or transferee
person is organized certifying that such person is a corporation organized in
such jurisdiction) stating that the proposed transaction and such supplemental
indenture will, upon consummation of the proposed transaction, comply with
this Article V.
Section 5.02 Successor Substituted.
Upon any consolidation, merger or any sale, transfer, lease,
conveyance or other disposition of all or substantially all of the property
and assets of the Company, the successor person formed by such consolidation
or into which the Company is merged or to which such sale, transfer, lease,
conveyance or other disposition is made shall succeed to, and, except in the
case of a lease, be substituted for, and may exercise every right and power
of, and shall assume every duty and obligation of, the Company under this
Indenture with the same effect as if such successor had been named as the
Company herein. When the successor assumes all obligations of the Company
hereunder, except in the case of a lease, all obligations of the predecessor
shall terminate.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events Of Default.
An "Event of Default" occurs if:
(A) the Company fails to pay the principal of any Security when the
same becomes due and payable, whether at maturity, upon Redemption, on an
Option Purchase Date with respect to a Purchase at Holder's Option, on a
Fundamental Change Repurchase Date with respect to a Repurchase Upon
Fundamental Change or otherwise, whether or not such payment is prohibited by
Article XI;
(B) the Company fails to pay an installment of interest or additional
interest, if any, on any Security when due, if such failure continues for
thirty (30) days after the date when due, whether or not such payment is
prohibited by Article XI;
(C) the Company fails to deliver the Principal Return, the Net Share
Amount or any cash in lieu of fractional shares, as the case may be, upon
conversion of Securities within the time period required by this Indenture,
and such failure continues for a period of five (5) days;
(D) the Company fails to timely provide a Fundamental Change Notice
or an Option Purchase Notice, as required by the provisions of this Indenture;
(E) the Company fails to comply with any other term, covenant or
agreement set forth in the Securities or this Indenture and such failure is
not cured within sixty (60) days after notice to the Company by the Trustee or
to the Company and the Trustee by Holders of at least twenty five percent
(25%) in the aggregate principal amount of the Securities then outstanding,
each in accordance with this Indenture;
(F) the Company or any of its Subsidiaries defaults in the payment
when due, after the expiration of any applicable grace period, of principal
of, or premium, if any, or interest on, Indebtedness for money borrowed in the
aggregate principal amount then outstanding of ten million dollars
($10,000,000) or more, or the acceleration of Indebtedness of the Company or
any of its Subsidiaries for money borrowed in such aggregate principal amount
or more so that it becomes due and payable prior to the date on which it would
otherwise become due and payable and such default is not cured or waived, or
such acceleration is not rescinded, within sixty (60) days after notice to the
Company by the Trustee or to the Company and the Trustee by Holders of at
least twenty five percent (25%) in the aggregate principal amount of the
Securities then outstanding, each in accordance with this Indenture;
(G) the Company or any of its Subsidiaries fails to pay final and
non-appealable judgments, the aggregate uninsured portion of which is at least
ten million dollars ($10,000,000), and such judgments are not paid or
discharged within sixty (60) days;
(H) the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company, pursuant to, or within the meaning of, any
Bankruptcy Law, insolvency law, or other similar law now or hereafter in
effect or otherwise, either:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property and assets, or
(iv) makes a general assignment for the benefit of its
creditors; or
(I) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company in
an involuntary case or proceeding, or adjudicates the Company or any
of its Significant Subsidiaries or any group of Subsidiaries that in
the aggregate would constitute a Significant Subsidiary of the
Company insolvent or bankrupt,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company
for all or substantially all of the property of the Company or any
such Significant Subsidiary or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company,
as the case may be, or
(iii) orders the winding up or liquidation of the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that
in the aggregate would constitute a Significant Subsidiary of the
Company,
and, in the case of each of the foregoing clauses (i), (ii) and (iii)
of this Section 6.01(I), the order or decree remains unstayed and in
effect for at least ninety (90) consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The notice specified in clause (E) above must specify the applicable
Default, must demand that it be remedied and must state that such notice is a
"Notice of Default." If the Holders of at least twenty five percent (25%) in
aggregate principal amount of the outstanding Securities request the Trustee
to give such notice on their behalf, the Trustee shall do so. When a Default
is cured, it ceases.
Section 6.02 Acceleration.
If an Event of Default (excluding an Event of Default specified in
Section 6.01(H) or (I) with respect to the Company (but including an Event of
Default specified in Section 6.01(H) or (I) solely with respect to a
Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company)) has
occurred and is continuing, the Trustee by notice to the Company, or the
Holders of at least twenty five percent (25%) in aggregate principal amount of
the Securities then outstanding by notice to the Company and the Trustee, may
declare the principal of and any accrued and unpaid interest, including
additional interest, if any, on all Securities to be immediately due and
payable. Upon such declaration, the principal of and any accrued and unpaid
interest, including additional interest, if any, on all Securities shall be
due and payable immediately. If an Event of Default specified in Section
6.01(H) or (I) with respect to the Company (excluding, for purposes of this
sentence, an Event of Default specified in Section 6.01(H) or (I) solely with
respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary
of the Company) occurs, the principal of, and accrued and unpaid interest,
including additional interest, if any, on, all the Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding, by written
notice to the Trustee, may rescind or annul an acceleration and its
consequences if (A) the rescission would not conflict with any governmental or
court order or decree, (B) all existing Events of Default, except the
nonpayment of principal, premium or interest that has become due solely
because of the acceleration, have been cured or waived and (C) all amounts due
to the Trustee under Section 7.07 have been paid.
Section 6.03 Other Remedies.
Notwithstanding any other provision of this Indenture, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of amounts due with
respect to the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative.
Section 6.04 Waiver Of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, by notice
to the Trustee, waive any past Default or Event of Default and its
consequences, other than (A) a Default or Event of Default in the payment of
principal of, or premium, if any, or interest or additional interest, if any,
on, any Security or in the payment of the Redemption Price, the Option
Purchase Price or the Fundamental Change Repurchase Price (or accrued and
unpaid interest, if any, payable as herein provided, upon Redemption Purchase
at Holder's Option or Repurchase Upon Fundamental Change), (B) a Default or
Event of Default arising from a failure by the Company to deliver the
Principal Return, the Net Share Amount or any cash in lieu of fractional
shares, as the case may be, upon conversion of Securities within the time
period required by this Indenture or (C) any Default or Event of Default in
respect of any provision of this Indenture or the Securities which, under
Section 9.02, cannot be modified or amended without the consent of the Holder
of each outstanding Security affected. When a Default or an Event of Default
is waived, it is cured and ceases to exist for every purpose of this
Indenture; provided, however, that no waiver of a Default or Event of Default
shall extend to any subsequent or other Default or Event of Default or impair
any consequent right. This Section 6.04 shall be in lieu of TIA Section
316(a)(1)(B), and, as permitted by the TIA, TIA Section 316(a)(1)(B) is hereby
expressly excluded from this Indenture.
Section 6.05 Control By Majority.
The Holders of a majority in aggregate principal amount of the
Securities then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability or expense unless the Trustee is offered indemnity
reasonably satisfactory to it against the costs, expenses and liabilities that
the Trustee may incur to comply with such request or demand; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. This Section 6.05 shall be in lieu of TIA
Section 316(a)(1)(A), and, as permitted by the TIA, TIA Section 316(a)(1)(A)
is hereby expressly excluded from this Indenture.
Section 6.06 Limitation On Suits.
Except as provided in Section 6.07, a Securityholder may not
institute any proceeding under this Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy under this Indenture unless:
(A) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(B) the Holders of at least twenty five percent (25%) in aggregate
principal amount of the Securities then outstanding make a written request to
the Trustee to pursue the remedy;
(C) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(D) the Trustee does not comply with the request within sixty (60)
days after receipt of notice, the request and the offer of indemnity; and
(E) during such sixty (60) day period, the Holders of a majority in
aggregate principal amount of the Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07 Rights Of Holders To Receive Payment And To Convert Securities.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of all amounts due with respect to the
Securities, on or after the respective due dates as provided herein, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of
any Holder to bring suit for the enforcement of the right to convert the
Security in accordance with this Indenture shall not be impaired or affected
without the consent of the Holder.
Section 6.08 Collection Suit By Trustee.
If an Event of Default specified in Section 6.01(A) or (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 due with respect
to the Securities, including any unpaid and accrued interest, and for a
further amount as shall be sufficient to cover the costs and expenses of
obtaining such judgment, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs Of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee, any predecessor Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company or its creditors or properties.
The Trustee may 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 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.
Section 6.10 Priorities.
Any money collected by the Trustee pursuant to this Article VI, 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 in
the following order:
First: to the Trustee (including any predecessor Trustee) for
amounts due under Section 7.07;
Second: to the holders of Senior Indebtedness to the extent
required by Article XI;
Third: to Securityholders for all amounts due and unpaid on the
Securities, without preference or priority of any kind,
according to the amounts due and payable on the
Securities; and
Fourth: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment by it to Securityholders pursuant
to this Section 6.10.
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 in the suit other than the Trustee of an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, 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 ten percent (10%) in aggregate principal amount of the outstanding
Securities.
ARTICLE VII
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
his or her own affairs.
(B) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no other duties, and no
implied covenants or obligations, shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(C) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 7.01(C) shall not be construed to limit the
effect of Sections 7.01(B) and 7.01(D);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(D) 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 the Trustee 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.
(E) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section 7.01.
(F) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights Of Trustee.
(A) Subject to Section 7.01, the Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting, upon any
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated
in the document; if, however, the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled during normal business hours to
examine the relevant books, records and premises of the Company, personally or
by agent or attorney upon reasonable prior notice.
(B) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate and/or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance
on such Officer's Certificate or Opinion of Counsel.
(C) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order.
(D) The Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(E) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(F) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
discretion, rights or powers conferred upon it by this Indenture.
(G) Except as otherwise provided in Section 7.01(A), the Trustee
shall have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article IV. In addition, the Trustee
shall not be charged with knowledge or be deemed to have notice of an Event of
Default except (i) any Default or Event of Default occurring pursuant to
Sections 6.01(A) or (B), if and so long as the Trustee is acting as Paying
Agent, or (ii) any Default or Event of Default of which a Responsible Officer
of the Trustee shall have received written notification at the Corporate Trust
Office of the Trustee from the Company, any other obligor on the Securities or
from any Holder of such Securities, and such notice references the Securities
and this Indenture. Delivery of reports, information and documents to the
Trustee under Article IV (other than Sections 4.04 and 4.07) is for
informational purposes only and the Trustee's receipt of the foregoing 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 on Officer's Certificates).
(H) The Trustee shall be under no obligation to exercise any of the
rights or powers vested by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(I) 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 each agent, custodian and other Person
employed to act hereunder.
(J) 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.
(K) The permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed as a
duty.
(L) 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 sole 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 upon reasonable request to examine the books, records and
premises of the Company, personally or by agent or attorney.
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 any
of its Affiliates with the same rights the Trustee would have if it were not
Trustee. Any Security Agent may do the same with like rights. The Trustee,
however, must comply with Sections 7.10 and 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 proceeds to the Company from the Securities; and it
shall not be responsible for the correctness of any recital contained herein
or for any statement in the Securities other than its certificate of
authentication.
Section 7.05 Notice Of Defaults.
If a Default or Event of Default occurs and is continuing and the
Trustee has received notice of such Default or Event of Default pursuant to
the provisions of this Indenture, then the Trustee, unless such Default or
Event of Default has been cured or waived, shall mail to each Holder a notice
of the Default or Event of Default within thirty (30) days after it occurs or,
if later, within fifteen (15) Business Days after the date the Trustee
receives such notice; provided, however, that except in the case of a Default
or Event of Default in payment of any amounts due with respect to any
Security, the Trustee may withhold such notice if, and so long as it in good
faith determines that, withholding such notice is in the best interests of the
Holders.
Section 7.06 Reports By Trustee To Holders.
Within sixty (60) days after each September 15, beginning with
September 15, 2005, the Trustee shall mail to each Securityholder, if required
by TIA Section 313(a), a brief report dated as of such September 15 that is
mailed to Holders in compliance with TIA Section 313(c). 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 mailed by first class mail to the Company and filed by the Trustee
with the SEC and each stock exchange, if any, on which the Securities are
listed. The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
Section 7.07 Compensation And Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed upon in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such
expenses shall include the reasonable compensation and out-of-pocket expenses
of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all loss,
liability, damage, claim or expense (including the reasonable fees and
expenses of counsel and taxes other than those based upon the income of the
Trustee) incurred by it in connection with the acceptance or administration of
this trust and the performance of its duties hereunder, including the
reasonable costs and expenses (including the reasonable fees and expenses of
counsel) of defending itself against any claim (whether asserted by the
Company, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers and duties hereunder. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnification; provided, however, that any
failure so to notify the Company shall not affect such indemnity obligations
of the Company. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the Trustee's
gross negligence or 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 amounts due
on particular Securities.
The payment, reimbursement and indemnity obligations of the Company
with respect to the Trustee and the lien provided for in this Section 7.07
shall survive any resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture and the termination for any reason of this
Indenture.
Without prejudice to its rights hereunder and in addition thereto,
when the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(H) or (I) occurs, the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
For purposes of this Section 7.07, the "Trustee" shall include any
predecessor Trustee; provided, however, that the gross negligence, negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.
Section 7.08 Replacement Of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in aggregate principal amount of the
Securities then outstanding may remove the Trustee by so notifying the Trustee
and the Company in writing and may appoint a successor Trustee. The Company
may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee 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 a
successor Trustee.
If a successor Trustee does not take office within thirty (30) days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Company's expense), the Company or the Holders of at least ten percent (10%)
in aggregate principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee, or
the retiring Trustee may appoint a successor Trustee at any time prior to the
date on which a successor Trustee takes office.
If the Trustee fails to comply with Section 7.10, the Company or any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to 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.
Section 7.09 Successor Trustee By Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person without any further act shall be the successor
Trustee, if such successor Person is otherwise eligible hereunder.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any State or Territory thereof or under the laws of the District of
Columbia or a corporation or other Person permitted by the SEC to act as
trustee, which Trustee (A) is authorized under such laws to exercise corporate
trustee power, (B) is subject to supervision or examination by federal or
state authorities and (C) has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b). Nothing in this Indenture
shall prevent the Trustee from filing with the SEC 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.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination Of The Obligations Of The Company.
This Indenture shall cease to be of further effect if (a) either (i)
all outstanding Securities (other than Securities replaced pursuant to Section
2.07 hereof) have been delivered to the Trustee for cancellation or (ii) all
outstanding Securities have been called for Redemption or have become due and
payable, or when the Securities will become due and payable within one year,
in each case whether at their scheduled maturity or upon Purchase at Holder's
Option or Repurchase Upon Fundamental Change, and in any such case the Company
irrevocably deposits, on or prior to the applicable due date, with the Trustee
or the Paying Agent (if the Paying Agent is not the Company or any of its
Affiliates) cash or non-callable Government Securities, or a combination
thereof, and, if applicable as herein provided and in accordance herewith,
such other consideration, sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.07 hereof) on the Maturity Date or in connection with an Option Purchase
Date, Redemption Date or Fundamental Change Repurchase Date, as the case may
be; (b) the Company pays to the Trustee all other sums payable hereunder by
the Company; (c) no Default or Event of Default with respect to the Securities
shall exist on the date of such deposit; (d) such deposit shall not result in
a breach or violation of, or constitute a Default or Event of Default under,
this Indenture or any other agreement or instrument to which the Company is a
party or by which it is bound; and (e) the Company has delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel (which may rely
upon such Officer's Certificate as to the absence of Defaults and Events of
Default and as to any factual matters), each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with; provided, however, that Sections 2.02,
2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.15, 2.16, 2.17, 3.05, 3.08, 3.09, 4.02,
4.05, 7.07 and 7.08 and Articles VIII, X, XI and XII shall survive any
discharge of this Indenture until such time as the Securities have been paid
in full and there are no Securities outstanding.
Section 8.02 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 the 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.
Section 8.03 Repayment To Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon the request of the Company, any excess money held by them at any time.
Subject to applicable abandoned property laws, the Trustee and the Paying
Agent shall pay to the Company upon the written request of the Company any
money held by them for the payment of the principal of, premium, if any, or
any accrued and unpaid interest on, the notes that remains unclaimed for two
(2) years; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may, at the expense of the Company,
cause to be published once in a newspaper of general circulation in the City
of New York or cause to be mailed to each Holder, notice stating that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than thirty (30) days from the date of such publication or
mailing, any unclaimed balance of such money then remaining shall be repaid to
the Company. After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors, subject to
applicable law, and all liability of the Trustee and the Paying Agent with
respect to such money and payment shall, subject to applicable law, cease.
Section 8.04 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or other
consideration in accordance with Sections 8.01 and 8.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the obligations of the Company under this Indenture and the Securities shall
be revived and reinstated as though no deposit had occurred pursuant to
Sections 8.01 and 8.02 until such time as the Trustee or Paying Agent is
permitted to apply all such money or other consideration in accordance with
Sections 8.01 and 8.02; provided, however, that if the Company has made any
payment of amounts due with respect to any Securities because of the
reinstatement of its obligations, then the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
Section 9.01 Without Consent Of Holders.
The Company, with the consent of the Trustee, may amend or supplement
this Indenture or the Securities without notice to or the consent of any
Securityholder:
(A) to comply with Sections 5.01 and 10.11 and, in accordance with
Section 10.14(F), to give effect to an election, pursuant to such Section
10.14(F), by the Company to make an Acquirer Stock Conversion Right Adjustment
with respect to a Public Acquirer Fundamental Change;
(B) to make any changes or modifications to this Indenture necessary
in connection with the registration of the public offer and sale of the
Securities under the Securities Act pursuant to the Registration Rights
Agreement or the qualification of this Indenture under the TIA;
(C) to secure the obligations of the Company in respect of the
Securities;
(D) to add to the covenants of the Company described in this
Indenture for the benefit of Securityholders or to surrender any right or
power conferred upon the Company;
(E) to make provision with respect to adjustments to the Conversion
Rate as required by this Indenture or to increase the Conversion Rate in
accordance with this Indenture;
(F) to add additional events which shall constitute an Event of
Default hereunder;
(G) to provide for a successor Trustee in accordance herewith; and
(H) to conform the text of this Indenture or the Securities to any
provision of the section of the Offering Memorandum entitled "Description of
notes."
In addition, the Company and the Trustee may enter into a
supplemental indenture without the consent of Holders of the Securities to
cure any ambiguity, defect, omission or inconsistency in this Indenture in a
manner that does not individually or in the aggregate adversely affect the
rights of any Holder in any material respect; provided, that the Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel as to
whether any such cure does not individually or in the aggregate adversely
affect the rights of any Holder in any material respect.
Section 9.02 With Consent Of Holders.
The Company, with the consent of the Trustee, may amend or supplement
this Indenture or the Securities without notice to any Securityholder but with
the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities. Subject to Sections 6.04 and
6.07, the Holders of a majority in aggregate principal amount of the
outstanding Securities may, by notice to the Trustee, waive compliance by the
Company with any provision of this Indenture or the Securities without notice
to any other Securityholder. Notwithstanding anything herein to the contrary,
without the consent of each Holder of each outstanding Security affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(A) change the stated maturity of the principal of, or the payment
date of any installment of interest or any premium on, any Security;
(B) reduce the principal amount of, or any premium, interest or
additional interest on, any Security;
(C) change the place or currency of payment of principal of, or any
premium, interest or additional interest on, any Security;
(D) impair the right to institute suit for the enforcement of any
payment on, or with respect to, any Security;
(E) modify, in a manner adverse to Holders, the provisions with
respect to the right of Holders pursuant to Article III to require the Company
to purchase Securities on an Option Purchase Date or to repurchase Securities
upon the occurrence of a Fundamental Change;
(F) modify the provisions of Article XI in a manner adverse to
Holder;
(G) adversely affect the right of Holders to convert Securities in
accordance with Article X;
(H) reduce the percentage of the aggregate principal amount of the
outstanding Securities whose Holders must consent to a modification to or
amendment of any provision of this Indenture or the Securities;
(I) reduce the percentage of the aggregate principal amount of the
outstanding Securities whose Holders must consent to a waiver of compliance
with any provision of this Indenture or the Securities or a waiver of any
Default or Event of Default; or
(J) modify the provisions of this Indenture with respect to
modification and waiver (including waiver of a Default or an Event of
Default), except to increase the percentage required for modification or
waiver or to provide for consent of each affected Holder.
Promptly after an amendment, supplement or waiver under Section 9.01
or this Section 9.02 becomes effective, the Company shall mail, or cause to be
mailed, to Securityholders a notice briefly describing such amendment,
supplement or waiver. Any failure of the Company to mail such notice shall not
in any way impair or affect the validity of such amendment, supplement or
waiver.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 9.03 Compliance With Trust Indenture Act.
Every amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 9.04 Revocation And Effect Of Consents.
If the Company shall solicit from the Holders a consent to any
amendment or supplement to the Indenture or any waiver hereunder, in each case
in accordance herewith, the Company may, but shall not be obligated to,
establish, by Board Resolution and delivery of an Officer's Certificate to the
Trustee, a record date for the purpose of determining the Holders of record
entitled to give such consent; provided, however, that (i) such record date
shall not be more than fifteen (15) days prior to the first solicitation of
such consent, and (ii) at least fifteen (15) days prior to such record date,
the Company shall, in accordance with Section 11.02, mail, or cause to be
mailed, by first class mail a notice of such record date to each Holder and
shall publicly disseminate a press release through a reputable national
newswire service, disclosing such record date. If a record date is so fixed in
accordance herewith, then (A) only the Holders of record at 5:00 p.m., New
York City time, 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 consented to such amendment, supplement or waiver,
and for that purpose the outstanding Securities shall be computed as of such
record date; and (B) those persons who were Holders as of 5:00 p.m., New York
City time, on such record date (or their duly designated proxies), and only
those persons, shall be entitled to revoke any consent previously given,
whether or not any such person continues to be a Holder after such record
date; provided, however, that no such consent by the Holders on such record
date shall be effective unless the applicable amendment, supplement or waiver
shall become effective pursuant to the provisions hereof no later than six (6)
months after such record date. Until an amendment, supplement or waiver
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation
of the consent is not made on any Security. After an amendment, supplement or
waiver becomes effective with respect to the Securities, it shall bind every
Holder (including subsequent Holders), unless such amendment, supplement or
waiver makes a change that requires, pursuant to Section 9.02, the consent of
each Holder affected. In that case, the amendment, supplement or waiver shall
bind each Holder or a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or in the case of Securities evidenced by a Global
Security, by any electronic transmission or other message, whether or not in
written format, that complies with the Applicable Procedures; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of Holders. 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.
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.
The ownership of Securities shall be proved by the register
maintained by the Registrar.
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.
Nothing in this Section 9.04 shall impair the Company's rights
pursuant Section 9.01(i) to amend this Indenture or the Securities without the
consent of any Securityholder in the manner set forth in, and permitted by,
such Section 9.01(i).
Section 9.05 Notation On Or Exchange Of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security as
directed and prepared by the Company about the changed terms and return it to
the Holder. Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms.
Section 9.06 Trustee Protected.
The Trustee shall sign any amendment, supplemental indenture or
waiver authorized pursuant to this Article IX; provided, however, that the
Trustee need not sign any amendment, supplement or waiver authorized pursuant
to this Article IX that adversely affects the Trustee's rights, duties,
liabilities or immunities. The Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel as to legal matters and an
Officer's Certificate as to factual matters that any supplemental indenture,
amendment or waiver is permitted or authorized pursuant to this Indenture.
Section 9.07 Effect of Supplemental Indentures.
Upon the due execution and delivery of any supplemental indenture in
accordance with this Article IX, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes, and, except as set forth in Sections 9.02 and
9.04, every Holder of Securities shall be bound thereby.
ARTICLE X
CONVERSION
Section 10.01 Conversion Privilege; Restrictive Legends.
(A) Subject to the provisions of Sections 3.04, 3.07, 3.08 and 3.09,
the Securities shall be convertible into cash and, if applicable, shares of
Common Stock in accordance with this Article X and as set forth below if any
of the following conditions are satisfied:
(i) Conversion Based on Closing Sale Price of Common Stock.
The Securities may be surrendered for conversion into cash and, if
applicable, shares of Common Stock on any Business Day of a fiscal
quarter after the fiscal quarter ending March 31, 2005 (and only
during that fiscal quarter), if the Closing Sale Price for each of
twenty (20) or more consecutive Trading Days in a period of thirty
(30) consecutive Trading Days ending on the last Trading Day of the
immediately preceding fiscal quarter exceeds one hundred and thirty
percent (130%) of the Conversion Price in effect as of that last
Trading Day. Solely for purposes of determining whether the
Securities shall have become convertible pursuant to this Section
10.01(A)(i), the Board of Directors shall, in its good faith
determination make appropriate adjustments to the Closing Sale Prices
and/or such Conversion Price used to determine whether the Securities
shall have become convertible pursuant to this Section 10.01(A)(i) to
account for any adjustments to the Conversion Rate which shall have
become effective, or any event requiring an adjustment to the
Conversion Rate where the Ex Date (as defined in Section 10.05(g)) of
such event occurs, during the period of thirty (30) consecutive
Trading Days ending on the last Trading Day of the immediately
preceding fiscal quarter.
(ii) Conversion Upon Satisfaction of Trading Price
Condition. The Securities may be surrendered for conversion into cash
and, if applicable, shares of Common Stock during the five (5)
Business Day period after any five (5) consecutive Trading Day period
(the "Note Measurement Period") in which the average Trading Price
per $1,000 principal amount of the Securities over the Note
Measurement Period was equal to or less than ninety five percent
(95%) of the average Conversion Value (as defined below) during the
Note Measurement Period (such condition, the "Trading Price
Condition"). The Bid Solicitation Agent shall not have any obligation
to determine the Trading Price unless the Company has requested such
determination, and the Company shall have no obligation to make such
request unless a Holder provides the Company with reasonable evidence
that the Trading Price per $1,000 principal amount of the Securities
would be equal to or less than ninety five percent (95%) of the
product of the Closing Sale Price and the Conversion Rate. Upon
receipt of such evidence, the Company shall instruct the Bid
Solicitation Agent to determine the Trading Price per $1,000
principal amount of the Securities for each of the five (5)
successive Trading Days immediately after the Company receives such
evidence and on each Trading Day thereafter until the first Trading
Day on which the Trading Price Condition is no longer satisfied. For
purposes of this paragraph, the "Conversion Value" per $1,000
principal amount of Securities, on a given Trading Day, means the
product of the Closing Sale Price on such Trading Day and the
Conversion Rate in effect on such Trading Day.
(iii) Conversion Based on Redemption. A Security, or portion
of a Security, which has been called for Redemption pursuant to
paragraph 6 of the Securities may be surrendered for conversion into
cash and, if applicable, shares of Common Stock; provided, however,
that such Security or portion thereof may be surrendered for
conversion pursuant to this paragraph only until 5:00 p.m., New York
City time, on the Business Day immediately preceding the Redemption
Date.
(iv) Conversion Upon Certain Distributions. If the Company
takes any action that would require an adjustment to the Conversion
Rate pursuant to Sections 10.05(B), 10.05(C), provided, that, with
regard to Section 10.05(C), such dividend or distribution has a per
share value exceeding ten percent (10%) of the price per share of
Common Stock on the Trading Day immediately preceding the date that
such dividend or distribution was first publicly announced, 10.05(D)
or 10.05(E), provided that, with regard to Sections 10.05(D) and
10.05(E), such distribution has a per share value exceeding ten
percent (10%) of the price per share of the Common Stock on the
Trading Day immediately preceding the date that such distribution was
first publicly announced, the Securities may be surrendered for
conversion into cash and, if applicable, shares of Common Stock
beginning on the date the Company mails the notice to the Holders as
provided in Section 10.10 (or, if earlier, the date the Company is
required to mail such notice) and at any time thereafter until the
earlier of the close of business on the Business Day immediately
preceding the Ex Date of the applicable transaction and the date the
Company announces that such transaction will not take place.
(v) Conversion Upon Occurrence of Certain Corporate
Transactions. If either (i) the Company is a party to a
consolidation, merger or binding share exchange pursuant to which all
of the Common Stock would be converted into cash, securities or other
property or (ii) a Fundamental Change shall have occurred, then, in
each case, the Securities may be surrendered for conversion into cash
and, if applicable, shares of Common Stock at any time on or before
the 30th day after the date the Company announces such consolidation,
merger, binding share exchange or Fundamental Change has occurred
(which the Company shall disclose in the written notice and public
announcement referred to in Section 10.01(C)).
(B) The initial Conversion Rate shall be 58.7648 shares of Common
Stock per $1,000 principal amount of Securities. The Conversion Rate shall be
subject to adjustment in accordance with Sections 10.05 through 10.11.
(C) Whenever any event described in Section 10.01 shall occur which
shall cause the Securities to become convertible as provided in this Article
X, the Company shall promptly deliver, in accordance with Section 13.02,
written notice of the convertibility of the Securities to the Trustee and each
Holder and shall, as soon as practicable publicly announce that the Securities
have become convertible. Such written notice and public announcement shall
include:
(i) a description of such event;
(ii) a description of the periods during which the
Securities shall be convertible as provided in this Article X as a
result of such event;
(iii) whether Make-Whole Consideration shall be payable upon
conversion of the Securities in connection with such event and, if
so, the form and amount of consideration in which such Make-Whole
Consideration shall be paid; and
(iv) the procedures Holders must follow to convert their
notes in accordance with this Article X, including the name and
address of the Conversion Agent.
(D) Subject to the restrictions set forth in Section 2.02, a Holder
may convert a portion of the principal amount of such Security if the portion
is $1,000 principal amount or an integral multiple of $1,000 principal amount.
Provisions of this Indenture that apply to conversion of all of a Security
also apply to conversion of a portion of it.
(E) Any shares of Common Stock that are issued upon conversion of a
Security shall bear the Private Placement Legend until the earlier of the
second anniversary of the later of the Issue Date and the last date on which
the Company or any Affiliate was the owner of such shares or the Security (or
any predecessor security) from which such shares were converted (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed by the Company and the
Holder thereof).
Section 10.02 Conversion Procedure And Payment Upon Conversion.
(A) To convert a Security, a Holder must satisfy the requirements of
paragraph 10 of the Securities. Upon conversion of a Holder's Security, the
Company shall deliver, through the Conversion Agent, the following to such
Holder:
(i) an amount (the "Principal Return") in cash equal to the
lesser of (1) the aggregate Net Share Settlement Conversion Value of
such Security and (2) the aggregate principal amount of such
Security;
(ii) if the aggregate Net Share Settlement Conversion Value
of such Security is greater than the Principal Return of such
Security (the excess, if any, of such Net Share Settlement Conversion
Value over such Principal Return being herein referred to as the "Net
Share Amount"), a certificate for a number of shares of Common Stock
(the "Net Shares") equal to a fraction whose numerator is the Net
Share Amount for such Security and whose denominator is Ten-Day
Weighted Average Price Per Share; provided, however, that the Company
shall not issue fractional shares of Common Stock and shall instead
deliver cash (in addition to any consideration otherwise payable upon
such conversion) in an amount equal to the value of such fraction
computed on the basis of such Ten-Day Weighted Average Price Per
Share; and
(iii) if a Make-Whole Fundamental Change occurs and such
Security is surrendered for conversion at any time on or before the
30th day after the date the Company announces the Make-Whole
Fundamental Change has occurred (which the Company shall disclose in
the written notice and public announcement referred to in Section
10.01(C)), in addition to the Principal Return and any Net Share
Amount receivable upon conversion, a Holder shall receive upon such
conversion Make-Whole Consideration, as determined in accordance
with, and in the manner and form as set forth in, Section 10.14(A).
The Company shall deliver such Principal Return and, if applicable,
such Net Shares as soon as practicable following the date (the "Conversion
Date") on which such Holder satisfies all the requirements for such conversion
specified in paragraph 10 of the Securities, but in no event more than five
(5) Business Days after the applicable Conversion Value Determination Date.
The Company shall deliver any such Make-Whole Consideration within the time
period specified in Section 10.14(D).
(B) The "Net Share Settlement Conversion Value" per $1,000 aggregate
principal amount of a Security to be converted pursuant to this Article X,
shall mean the product of:
(i) the Conversion Rate in effect at the time such Security
is tendered for conversion; and
(ii) the average of the daily Volume-Weighted Average Price
(as defined below) per share of Common Stock for each of the ten (10)
consecutive Trading Days beginning on the second Trading Day
immediately following the day such Security is so tendered for
conversion (the "Ten-Day Weighted Average Price Per Share," and, the
last Trading Day of such ten (10) consecutive Trading Days, the
"Conversion Value Determination Date");
provided, however, that the Board of Directors shall, in its good faith
determination, make appropriate adjustments to the Net Share Settlement
Conversion Value to account for any adjustment, pursuant hereto, to the
Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event
occurs, at any time from, and including, the date such Security is so tendered
for conversion to, and including, the date that the consideration payable upon
conversion pursuant hereto is delivered in accordance herewith. The Company
shall, no later than the applicable Conversion Value Determination Date,
calculate the Net Share Settlement Conversion Value of a Security to be
converted.
The "Volume-Weighted Average Price" per share of Common Stock on any
Trading Day shall mean the volume-weighted average price per share of Common
Stock on the New York Stock Exchange or, if the Common Stock shall not be
listed on the New York Stock Exchange, on the principal exchange or
over-the-counter market on which the Common Stock shall then be listed or
traded in all cases, from 9:30 a.m. to 4:30 p.m., New York City time, on such
Trading Day as displayed by Bloomberg or such other comparable service that
has replaced Bloomberg; provided, however, that if such volume-weighted
average price shall not be available, then the Board of Directors shall in
good faith determine the amount to be used as the Volume-Weighted Average
Price for purposes hereof.
(C) The amount of cash paid upon conversion of the Securities shall
not exceed the aggregate principal amount of the Securities issued. If a
Holder converts Securities in connection with a Make-Whole Fundamental Change,
the Conversion Rate applicable to such Securities shall be increased in
accordance with Section 10.14. In addition, the Company shall not issue
fractional shares of Common Stock upon conversion of Securities and instead
shall pay the cash adjustment for fractional shares described in this Section
10.02.
(D) On and after the Conversion Date of a Security, the person in
whose name any certificate representing Net Shares, if any, is to be
registered shall be treated as a stockholder of record of the Company, and all
rights of the Holder of such Security shall terminate, other than the right to
receive the consideration deliverable upon conversion of such Security as
provided herein. A Holder of Securities is not entitled, as such, to any
rights of a holder of Common Stock until such Holder has converted its
Securities into shares of Common Stock (to the extent such Securities are
convertible into Shares of Common Stock) or is deemed to be a stockholder of
record of the Company, as provided in this Section 10.02(D).
(E) Except as provided in the Securities or in this Article X, no
payment or adjustment shall be made for accrued interest on, or contingent
interest or additional interest with respect to, a converted Security or for
dividends on any Common Stock issued on or prior to conversion. If any Holder
surrenders a Security for conversion after the close of business on the record
date for the payment of an installment of interest and prior to the related
interest payment date, then, notwithstanding such conversion, the interest
payable with respect to such Security on such interest payment date shall be
paid on such interest payment date to the Holder of record of such Security at
the close of business on such record date; provided, however, that such
Security, when surrendered for conversion, must be accompanied by payment to
the Conversion Agent on behalf of the Company of an amount equal to the
interest payable on such interest payment date on the portion so converted;
provided further, however, that such payment to the Conversion Agent described
in the immediately preceding proviso in respect of a Security surrendered for
conversion shall not be required if such Security is called for Redemption
pursuant to Section 3.04 and paragraphs 6 and 7 of the Securities; provided
further, that, if the Company shall have, prior to the Conversion Date with
respect to a Security, defaulted in a payment of interest on such Security,
then in no event shall the Holder of such Security who surrenders such
Security for conversion be required to pay such defaulted interest or the
interest that shall have accrued on such defaulted interest pursuant to
Section 2.12 (it being understood that nothing in this Section 10.02(E) shall
affect the Company's obligations under Section 2.12).
(F) If a Holder converts more than one Security at the same time, the
number of full shares of Common Stock issuable upon such conversion, if any,
shall be based on the total principal amount of all Securities converted.
(G) Upon surrender of a Security that is converted in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered.
(H) If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
(I) Once given, a Conversion Notice may not be rescinded.
Section 10.03 Taxes On Conversion.
If a Holder converts its Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax or duty due on the issue,
if any, of shares of Common Stock upon the conversion. However, such Holder
shall pay any such tax or duty which is due because such shares are issued in
a name other than such Holder's name. The Conversion Agent may refuse to
deliver a certificate representing the shares of Common Stock to be issued in
a name other than such Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax or duty which shall be due because such shares are
to be issued in a name other than such Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulation.
Section 10.04 Company To Provide Stock.
The Company shall at all times reserve out of its authorized but
unissued Common Stock or Common Stock held in its treasury enough shares of
Common Stock to permit the conversion, in accordance herewith, of all of the
Securities into shares of Common Stock. The Company shall deliver the shares
of Common Stock due upon conversion of a Global Security in accordance with
the Depositary's customary practices.
All shares of Common Stock that may be issued upon conversion of the
Securities shall be validly issued, fully paid and non-assessable and shall be
free of preemptive or similar rights and free of any lien or adverse claim.
Section 10.05 Adjustment Of Conversion Rate.
The Conversion Rate shall be subject to adjustment from time to time
as follows:
(A) In case the Company shall (1) pay a dividend in shares of Common
Stock to all holders of Common Stock, (2) make a distribution in shares of
Common Stock to all holders of Common Stock, (3) subdivide the outstanding
shares of Common Stock into a greater number of shares of Common Stock or (4)
combine the outstanding shares of Common Stock into a smaller number of shares
of Common Stock, the Conversion Rate shall be adjusted by multiplying the
Conversion Rate in effect immediately prior to close of business on the record
date or effective date, as applicable, of such dividend, distribution,
subdivision or combination by the number of shares of Common Stock which a
person who owns only one share of Common Stock immediately before the record
date or effective date, as applicable, of such dividend, distribution,
subdivision or combination and who is entitled to participate in such
dividend, distribution, subdivision or combination would own immediately after
giving effect to such dividend, distribution, subdivision or combination
(without giving effect to any arrangement pursuant to such dividend,
distribution, subdivision or combination not to issue fractional shares of
Common Stock). Subject to Section 10.06, any adjustment made pursuant to this
Section 10.05(A) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or combination.
(B) In case the Company shall issue rights or warrants to all or
substantially all holders of Common Stock, entitling them, for a period
expiring not more than sixty (60) days immediately following the record date
for the determination of holders of Common Stock entitled to receive such
rights or warrants, to subscribe for or purchase shares of Common Stock (or
securities convertible into or exchangeable or exercisable for Common Stock),
at a price per share (or having a conversion, exchange or exercise price per
share) that is less than the current market price (as determined pursuant to
Section 10.05(G)) of Common Stock on the last Trading Day preceding the
declaration date for such distribution (the "Declaration Date") of such rights
or warrants, the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to such declaration date by a
fraction of which (A) the numerator shall be the sum of (I) the number of
shares of Common Stock outstanding at the close of business on such
declaration date and (II) the aggregate number of shares (the "Underlying
Shares") of Common Stock underlying all such issued rights or warrants
(whether by exercise, conversion, exchange or otherwise), and (B) the
denominator shall be the sum of (I) number of shares of Common Stock
outstanding at the close of business on such declaration date and (II) the
number of shares of Common Stock which the aggregate exercise, conversion,
exchange or other price at which the Underlying Shares may be subscribed for
or purchased pursuant to such rights or warrants would purchase at such
current market price. Such increase shall become effective immediately prior
to the opening of business on the day following such record date. In no event
shall the Conversion Rate be decreased pursuant to this Section 10.05(B).
(C) In case the Company shall dividend or distribute to all or
substantially all holders of Common Stock shares of Capital Stock of the
Company (other than Common Stock), evidences of Indebtedness or other assets
(other than dividends or distributions requiring an adjustment to the
Conversion Rate in accordance with Sections 10.05(D), or 10.05(E)), or shall
dividend or distribute to all or substantially all holders of Common Stock
rights or warrants to subscribe for or purchase securities (other than
dividends or distributions of rights or warrants requiring an adjustment to
the Conversion Rate in accordance with Section 10.05(B)), then in each such
case the Conversion Rate shall be increased by multiplying the Conversion Rate
in effect immediately prior to the close of business on the record date for
the determination of stockholders entitled to such dividend or distribution by
a fraction of which (A) the numerator shall be the current market price of
Common Stock (as determined pursuant to Section 10.05(G)) on such record date
and (B) the denominator shall be an amount equal to (I) such current market
price less (II) the fair market value (as determined in good faith by the
Board of Directors), on such record date, of the portion of the shares of
Capital Stock, evidences of Indebtedness, assets, rights and warrants to be
dividended or distributed applicable to one share of Common Stock, such
increase to become effective immediately prior to the opening of business on
the day following such record date; provided, however, that if such
denominator is equal to or less than zero, then, in lieu of the foregoing
adjustment to the Conversion Rate, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of its Securities,
in addition to any consideration otherwise payable as herein provided upon
such conversion, an amount, per $1,000 principal amount of such Securities, of
shares of Capital Stock, evidences of Indebtedness, assets, rights and/or
warrants that a person that owns, on such record date, a number of shares of
Common Stock equal to the Conversion Rate in effect at the close of business
on such record date would have received as a result of such dividend or
distribution. Notwithstanding the foregoing, in the event that the Company
shall distribute rights or warrants (other than distributions of rights or
warrants requiring an adjustment to the Conversion Rate in accordance with
Section 10.05(B)) (collectively, "Rights") pro rata to holders of Common
Stock, the Company may, in lieu of making any adjustment pursuant to this
Section 10.05(C), make proper provision so that each Holder of a Security who
converts such Security (or any portion thereof) on or after the record date
for such distribution and prior to the expiration or redemption of the Rights
shall be entitled to receive upon such conversion, in addition to any
consideration otherwise payable as herein provided upon such conversion, a
number of Rights, per $1,000 principal amount of such Security, to be
determined as follows: (i) if such conversion occurs on or prior to the date
for the distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal to the Conversion
Rate in effect at the close of business on such record date (or, in the event
such distribution is pursuant to a stockholders' rights plan, equal to the
number of Net Shares that would be issuable in accordance herewith if such
Security were surrendered for conversion immediately before the close of
business on such record date) would be entitled at the time of such conversion
in accordance with the terms and provisions of and applicable to the Rights;
and (ii) if such conversion occurs after the Distribution Date, the same
number of Rights to which a holder of a number of shares of Common Stock equal
to the Conversion Rate in effect immediately prior to the Distribution Date
(or, in the event such distribution is pursuant to a stockholders' rights
plan, equal to the number of Net Shares that would be issuable in accordance
herewith if such Security were surrendered for conversion immediately before
the close of business on the Business Day immediately preceding the
Distribution Date) would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights. Any
distribution of rights or warrants pursuant to a stockholders' rights plan
complying with the requirements set forth in the preceding sentence of this
paragraph and with Section 10.13 shall not constitute a distribution of rights
or warrants pursuant to this Section 10.05(C). In no event shall the
Conversion Rate be decreased pursuant to this Section 10.05(C).
(D) In case the Company shall, by dividend or otherwise, at any time
make a distribution of cash (excluding any cash that is distributed as part of
a distribution requiring a Conversion Rate adjustment pursuant to Section
10.05(E)) to all or substantially all holders of Common Stock, the Conversion
Rate shall be increased by multiplying the Conversion Rate in effect
immediately prior to the close of business on the record date for the
determination of holders of Common Stock entitled to such distribution by a
fraction (A) whose numerator shall be the current market price per share of
Common Stock (as determined pursuant to Section 10.05(G)) on such record date
and (B) whose denominator shall be an amount equal to (I) such current market
price per share of Common Stock less (II) the amount of the distribution per
share of Common Stock; provided, however, that the Conversion Rate shall not
be adjusted pursuant to this Section 10.05(d) to the extent, and only to the
extent, such adjustment would cause the Conversion Price to be less than one
cent ($0.01); provided further that, if the denominator of such fraction shall
be equal to or less than zero, the Conversion Rate shall be instead adjusted
so that the Conversion Price is equal to one cent ($0.01). An adjustment to
the Conversion Rate pursuant to this Section 10.05(D) shall become effective
immediately prior to the opening of business on the day immediately following
such record date. In no event shall the Conversion Rate be decreased pursuant
to this Section 10.05(D).
(E) In case the Company or any Subsidiary shall distribute cash or
other consideration in respect of a tender offer or exchange offer made by the
Company or any Subsidiary for all or any portion of the Common Stock where the
sum of the aggregate amount of such cash distributed and the aggregate fair
market value (as determined in good faith by the Board of Directors), as of
the Expiration Date (as defined below), of such other consideration
distributed (such sum, the "Aggregate Amount") expressed as an amount per
share of Common Stock validly tendered or exchanged, and not withdrawn,
pursuant to such tender offer or exchange offer as of the Expiration Time (as
defined below) (such tendered or exchanged shares of Common Stock, the
"Purchased Shares") exceeds the current market price per share of Common Stock
(as determined pursuant to Section 10.05(G)) on the last date (such last date,
the "Expiration Date") on which tenders or exchanges could have been made
pursuant to such tender offer or exchange offer (as the same may be amended
through the Expiration Date), then the Conversion Rate shall be increased by
multiplying the Conversion Rate in effect immediately prior to the close of
business on the Expiration Date by a fraction (A) whose numerator is equal to
the sum of (I) the Aggregate Amount and (II) the product of (a) the current
market price per share of Common Stock (as determined pursuant to Section
10.05(G)) on the Expiration Date and (b) an amount equal to (i) the number of
shares of Common Stock outstanding as of the last time (the "Expiration Time")
at which tenders or exchanges could have been made pursuant to such tender
offer or exchange offer (including all Purchased Shares) less (ii) the
Purchased Shares and (B) whose denominator is equal to the product of (I) the
number of shares of Common Stock outstanding as of the Expiration Time
(including all Purchased Shares) and (II) the current market price per share
of Common Stock on the Expiration Date.
An increase, if any, to the Conversion Rate pursuant to this Section
10.05(E) shall become effective immediately prior to the opening of business
on the Business Day following the Expiration Date. In the event that the
Company or a Subsidiary is obligated to purchase shares of Common Stock
pursuant to any such tender offer or exchange offer, but the Company or such
Subsidiary is permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, then the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such tender offer or exchange offer had not been made. If the application of
this Section 10.05(E) to any tender offer or exchange offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such tender
offer or exchange offer under this Section 10.05(E).
(F) In addition to the foregoing adjustments in subsections (A), (B),
(C), (D), and (E) above, the Company, from time to time and to the extent
permitted by law, may increase the Conversion Rate by any amount for a period
of at least twenty (20) days or such longer period as may be required by law,
if the Board of Directors has made a determination, which determination shall
be conclusive, that such increase would be in the best interests of the
Company. Such Conversion Rate increase shall be irrevocable during such
period. The Company shall give notice to the Trustee and cause notice of such
increase to be mailed to each Holder of Securities at such Holder's address as
the same appears on the registry books of the Registrar, at least fifteen (15)
days prior to the date on which such increase commences.
(G) For the purpose of any computation under subsections (A), (C) or
(D) above of this Section 10.05, the current market price per share of Common
Stock on the date fixed for determination of the stockholders entitled to
receive the issuance or distribution requiring such computation (the
"Determination Date") shall be deemed to be the average of the Closing Sale
Prices for the ten (10) consecutive Trading Days ending on the earlier of the
day of determination and the day immediately preceding the Ex Date with
respect to the distribution requiring such computation; for the purpose of any
computation under Section 10.05(B), the current market price per share of
Common Stock on the Declaration Date requiring such computation shall be
deemed to be the average of the Closing Sale Prices for the ten (10)
consecutive Trading Days immediately preceding the Declaration Date; and for
the purpose of any computation under Section 10.05(E), the current market
price per share of Common Stock on the Expiration Date for the tender offer or
exchange offer requiring such computation shall be deemed to be the average of
the Closing Sale Price for the ten (10) consecutive Trading Days immediately
preceding the Expiration Date; provided, however, that (i) if the Ex Date for
any event (other than the event requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to subsection (A), (B), (C), (D) or
(E) above occurs on or after the tenth (10th) Trading Day prior to the
Determination Date, the Declaration Date or the Expiration Date, whichever is
applicable, and prior to the Ex Date for the issuance or distribution
requiring such computation, the Closing Sale Price for each Trading Day prior
to the Ex Date for such other event shall be adjusted by multiplying such
Closing Sale Price by the reciprocal of the fraction by which the Conversion
Rate is so required to be adjusted as a result of such other event, (ii) if
the Ex Date for any event (other than the event requiring such computation)
that requires an adjustment to the Conversion Rate pursuant to subsection (A),
(B), (C), (D), or (E) above occurs on or after the Ex Date for the issuance or
distribution requiring such computation and on or prior to the Determination
Date, the Declaration Date or the Expiration Date, whichever is applicable,
the Closing Sale Price for each Trading Day on and after the Ex Date for such
other event shall be adjusted by multiplying such Closing Sale Price by the
same fraction by which the Conversion Rate is so required to be adjusted as a
result of such other event, and (iii) if the Ex Date for the event requiring
such computation is on or prior to the Determination Date, the Declaration
Date or the Expiration Date, whichever is applicable, after taking into
account any adjustment required pursuant to clause (i) or (ii) of this
proviso, the Closing Sale Price for each Trading Day on and after such Ex Date
shall be adjusted by adding thereto the amount of any cash and the fair market
value (as determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for the purposes of this
Section 10.05, whose determination shall be conclusive and set forth in a
Resolution of the Board of Directors) of the evidences of Indebtedness, shares
of Capital Stock or other securities or assets or cash being distributed (in
the event requiring such computation) applicable to one share of Common Stock
as of the close of business on the day before such Ex Date.
The term "Ex Date," (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades the
regular way on the relevant exchange or in the relevant market from which the
Closing Sale Price was obtained without the right to receive such issuance or
distribution, (ii) when used with respect to any subdivision or combination of
shares of Common Stock, means the first date on which the Common Stock trades
the regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (iii) when used with
respect to any tender offer or exchange offer means the first date on which
the Common Stock trades the regular way on such exchange or in such market
after the expiration time of such tender offer or exchange offer (as it may be
amended or extended).
(H) Notwithstanding anything herein to the contrary, the Company may
not increase the Conversion Rate above 76.3942 shares per $1,000 principal
amount of Securities (the "Maximum Conversion Rate") pursuant to the events
described in subsection (B), (C), (D), (E) or (F) of this Section 10.05 or
Section 10.14. The Company shall adjust this Maximum Conversion Rate in the
same manner as the Company adjusts the Conversion Rate for stock splits and
combinations, stock dividends, reclassifications and similar events pursuant
to subsection (a) of this Section 10.05.
Section 10.06 No Adjustment.
No adjustment in the Conversion Rate shall be required until
cumulative adjustments amount to one percent (1%) or more of the Conversion
Rate as last adjusted (or, if never adjusted, the initial Conversion Rate);
provided, however, that any adjustments to the Conversion Rate which by reason
of this Section 10.06 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment to the Conversion Rate. All
calculations under this Article X shall be made to the nearest cent or to the
nearest one-millionth of a share, as the case may be.
No adjustment to the Conversion Rate need be made for a transaction
referred to in this Article X if Holders are to participate in the transaction
without conversion on a basis and with notice that the Board of Directors
determines in good faith to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction.
Section 10.07 Other Adjustments.
If any rights, options or warrants issued by the Company and
requiring an adjustment to the Conversion Rate in accordance with Section
10.05 are only exercisable upon the occurrence of certain triggering events,
then the Conversion Rate shall not be adjusted as provided in Section 10.05
until the earliest of such triggering event occurs. If any rights, options or
warrants issued by the Company and requiring an adjustment to the Conversion
Rate in accordance with Section 10.05 shall expire or terminate without the
exercise of such rights, options or warrants, the Conversion Rate then in
effect shall be adjusted immediately to the Conversion Rate which would have
been in effect at the time of such expiration or termination had such rights,
options or warrants, to the extent outstanding immediately prior to such
expiration or termination, never been issued.
If any dividend or distribution is declared and the Conversion Rate
is adjusted pursuant to Section 10.05 on account of such dividend or
distribution, but such dividend or distribution is thereafter not paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate which
would then be in effect had such dividend or distribution not been declared.
In the event that, as a result of an adjustment made pursuant to
Section 10.05 hereof, the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock other
than shares of Common Stock, thereafter the Conversion Rate of such other
shares so receivable upon conversion of any Security shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this
Article X.
Section 10.08 Adjustments For Tax Purposes.
The Company may make such increases in the Conversion Rate, in
addition to those required by Section 10.05 hereof, as it determines to be
advisable in order that any stock dividend, subdivision of shares,
distribution or rights to purchase stock or securities or distribution of
securities convertible into or exchangeable for stock made by the Company or
to its stockholders shall not be taxable to the recipients thereof.
Section 10.09 Notice Of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders at the addresses appearing on the Registrar's books a notice
of the adjustment and file with the Trustee an Officer's Certificate briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence of the correctness of such
adjustment.
Section 10.10 Notice Of Certain Transactions.
In the event that:
(1) the Company takes any action, or becomes aware of any event,
which would require an adjustment in the Conversion Rate,
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.11, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders at the addresses appearing on the
Registrar's books and the Trustee a written notice stating the proposed
record, effective or expiration date, as the case may be, of any transaction
referred to in clause (1), (2) or (3) of this Section 10.10. The Company shall
mail such notice at least twenty (20) days before such date (or, in the case
of an event described in Section 10.05(D) or Section 10.05(E), as soon as
practicable); however, failure to mail such notice or any defect therein shall
not affect the validity of any transaction referred to in clause (1), (2) or
(3) of this Section 10.10.
Section 10.11 Effect Of Reclassifications, Consolidations, Mergers, Binding
Share Exchanges Or Sales On Conversion Privilege.
If any of the following shall occur, namely: (i) any reclassification
or change in the Common Stock issuable upon conversion of Securities (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), (ii) any
consolidation, merger or binding share exchange to which the Company is a
party other than a merger in which the Company is the continuing Person and
which does not result in any reclassification of, or change (other than a
change in name, or par value, or from par value to no par value, or from no
par value to par value or as a result of a subdivision or combination) in, the
Common Stock or (iii) any sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property and assets of the
Company, then the Company or such successor or purchasing Person, as the case
may be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, execute and deliver to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee providing that, at
and after the effective time of such reclassification, change, consolidation,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition, the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of shares of stock and other
securities and property (including cash) (collectively, "Reference Property")
receivable upon such reclassification, change, consolidation, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition by a holder
of a number of shares of Common Stock equal to a fraction whose denominator is
one thousand (1,000) and whose numerator is the product of the principal
amount of such Security and the Conversion Rate in effect immediately prior to
such reclassification, change, consolidation, merger, binding share exchange,
sale, transfer, lease, conveyance or disposition, assuming that such Holder
would not have exercised any rights of election that such Holder would have
had as a holder of Common Stock to select a particular type of consideration;
provided, however, that after at the effective time of such reclassification,
change, consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the Principal Return payable hereunder upon
conversion of such Security shall continue to be payable in cash and the Net
Share Settlement Conversion Value shall be calculated based on the fair value
of the Reference Property. Such supplemental indenture shall provide for
adjustments of the Conversion Rate which shall be as nearly equivalent as may
be practicable to the adjustments of the Conversion Rate provided for in this
Article X. The foregoing, however, shall not in any way affect the right a
Holder of a Security may otherwise have, pursuant to Section 10.05(C) or
Section 10.13, to receive Rights upon conversion of a Security. If, in the
case of any such consolidation, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
includes shares of stock or other securities and property of a Person other
than the successor or purchasing Person, as the case may be, in such
consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, then such supplemental indenture shall also be
executed by such other Person and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of
Directors in good faith shall reasonably determine necessary by reason of the
foregoing. The provision of this Section 10.11 shall similarly apply to
successive consolidations, mergers, binding share exchanges, sales, transfers,
leases, conveyances or dispositions.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.11, the Company shall promptly file with the
Trustee an Officer's Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, change, consolidation, merger,
binding share exchange, sale, transfer, lease, conveyance or disposition and
any adjustment to be made with respect thereto.
Section 10.12 Trustee's Disclaimer.
The Trustee and any Security Agent shall not at any time be under any
duty or responsibility to any Holder to either calculate the Conversion Price
or determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed herein,
or in any supplemental indenture, in making the same and shall be protected in
relying upon an Officer's Certificate with respect to the same. Neither the
Trustee nor any Security Agent shall be accountable with respect to the
validity or value (of the kind or amount) of any shares of Common Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any Security
Agent makes any representation with respect thereto. Neither the Trustee nor
any Security Agent shall be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock
or stock or share certificates or other securities or property upon the
surrender of any Security for the purpose of conversion; and the Trustee and
any Security Agent shall not be responsible or liable for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article X. Without limiting the generality of the foregoing, neither the
Trustee nor any Security Agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 10.11 relating either to the kind or amount
of shares of stock or securities or other property and assets (including cash)
receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 10.11 or to any adjustment to be made to the
Conversion Rate in connection therewith, 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. Neither
the Trustee nor any Security Agent (except for the Bid Solicitation Agent in
respect of the determination of the Trading Price as and to the extent
provided in Section 10.01) shall be responsible for determining whether any
event contemplated by Section 10.01 has occurred which makes the Securities
eligible for conversion until the Company has delivered to the Trustee and any
Security Agent an Officer's Certificate stating that such event has occurred,
on which Certificate the Trustee and any such Security Agent may conclusively
rely, and the Company agrees to deliver such Officer's Certificate to the
Trustee and any such Security Agent immediately after the occurrence of any
such event.
The Trustee has no duty to determine when an adjustment under this
Article X should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon, the Officer's Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 10.09 hereof. The Trustee makes no representation as to
the validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the failure by the
Company to comply with any provisions of this Article X.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 10.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officer's
Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 10.11 hereof.
Section 10.13 Rights Distributions Pursuant To Stockholders' Rights Plans.
Upon conversion of any Security or a portion thereof, the Company
shall make provision for the Holder thereof to receive, in addition to, and
concurrently with the delivery of, the consideration otherwise payable
hereunder upon such conversion on, the rights described in any stockholders'
rights plan the Company may have in effect at such time (whether or not the
rights have been separated from the Common Stock prior to the time of
conversion). In the event that the Company implements a stockholders' rights
plan after the date hereof, the Company shall provide that the Holders shall
receive upon conversion of their Securities, in addition to the consideration
otherwise payable hereunder upon such conversion, the rights described therein
(whether or not the rights have been separated from the Common Stock prior to
the time of conversion).
Section 10.14 Increased Conversion Rate Applicable to Certain Notes Surrendered
in Connection With Make-Whole Fundamental Changes.
(A) Notwithstanding anything herein to the contrary, the Conversion
Rate applicable to each Security that is surrendered for conversion, in
accordance with this Article X, at any time on or before the 30th day after
the date we announce a Make-Whole Fundamental Change has occurred (which the
Company shall disclose in the written notice, public announcement and
publication referred to in Section 10.14(E)) shall be increased to an amount
equal to the Conversion Rate that would, but for this Section 10.14, otherwise
apply to such Security pursuant to this Article X, plus an amount equal to the
Make-Whole Conversion Rate Adjustment; provided, however, that such increase
to the Conversion Rate shall not apply if either:
(i) such Make-Whole Fundamental Change constitutes a Public
Acquirer Fundamental Change with respect to which the Company shall
have duly made, and given full effect to, an election, pursuant to
and in accordance with Section 10.14(F), to make an Acquirer Stock
Conversion Right Adjustment; or
(ii) such Make-Whole Fundamental Change is announced by the
Company but shall not be consummated.
The additional consideration payable hereunder on account of any
Make-Whole Conversion Rate Adjustment with respect to a Security surrendered
for conversion is herein referred to as the "Make-Whole Consideration."
For the avoidance of doubt, a Make-Whole Conversion Rate Adjustment
or payment of Make-Whole Consideration provided for in this Section 10.14
shall be made only with respect to the Securities being converted in
connection with the applicable Make-Whole Fundamental Change and shall not be
effective as to any Securities not so converted.
(B) As used herein, "Make-Whole Conversion Rate Adjustment" shall
mean, with respect to each Make-Whole Fundamental Change and each applicable
Security, an amount equal to a fraction whose numerator is the product of the
Applicable Increase and the principal amount of such Security to be converted
and whose denominator is one thousand dollars ($1,000). As used herein,
"Applicable Increase" shall mean, with respect to a Make-Whole Fundamental
Change, the amount, set forth in the following table, which corresponds to the
effective date of such Make-Whole Fundamental Change (the "Effective Date")
and the Applicable Price of such Make-Whole Fundamental Change:
Applicable Increase
(per $1,000 principal amount of Securities)
Effective date
Applicable March March March March March March March March
price 10, 2005 15, 2006 15, 2007 15, 2008 15, 2009 15, 2010 15, 2011 15, 2012
$13.09..... 20.40 20.62 19.81 18.98 18.22 18.17 18.37 0.00
$15.00..... 15.85 15.83 14.84 13.70 12.36 11.40 11.18 0.00
$17.50..... 11.80 11.64 10.56 9.25 7.53 5.36 5.12 0.00
$20.00..... 9.08 8.86 7.80 6.48 4.70 1.27 1.24 0.00
$22.50..... 7.18 6.94 5.94 4.71 3.03 0.00 0.00 0.00
$25.00..... 5.79 5.57 4.66 3.54 2.06 0.00 0.00 0.00
$27.50..... 4.76 4.57 3.75 2.75 1.48 0.00 0.00 0.00
$30.00..... 3.97 3.81 3.08 2.20 1.13 0.00 0.00 0.00
$32.50..... 3.35 3.22 2.57 1.81 0.92 0.00 0.00 0.00
$35.00..... 2.86 2.76 2.19 1.52 0.78 0.00 0.00 0.00
$37.50..... 2.47 2.39 1.88 1.31 0.68 0.00 0.00 0.00
$40.00..... 2.14 2.09 1.64 1.14 0.61 0.00 0.00 0.00
$42.50..... 1.87 1.84 1.44 1.01 0.56 0.00 0.00 0.00
$45.00..... 1.64 1.63 1.28 0.90 0.51 0.00 0.00 0.00
$47.50..... 1.44 1.46 1.14 0.81 0.47 0.00 0.00 0.00
$50.00..... 1.28 1.31 1.03 0.73 0.44 0.00 0.00 0.00
$52.50..... 1.13 1.17 0.93 0.67 0.41 0.00 0.00 0.00
$55.00..... 1.01 1.06 0.84 0.61 0.39 0.00 0.00 0.00
provided, however, that:
(i) if the actual Applicable Price of such Make-Whole
Fundamental Change is between two (2) prices listed in the table
above under the column titled "Applicable Price," or if the actual
Effective Date of such Make-Whole Fundamental Change is between two
dates listed in the table above in the row immediately below the
title "Effective Date," then the Applicable Increase for such
Make-Whole Fundamental Change shall be determined by linear
interpolation between the Applicable Increases set forth for such two
prices, or for such two dates based on a three hundred and sixty five
(365) day year, as applicable;
(ii) if the actual Applicable Price of such Make-Whole
Fundamental Change is greater than $55.00 per share (subject to
adjustment as provided in Section 10.14(B)(iii)), or if the actual
Applicable Price of such Make-Whole Fundamental Change is less than
$13.09 per share (subject to adjustment as provided in Section
10.14(B)(iii)), then the Applicable Increase shall be equal to zero
(0) and this Section 10.14 shall not require the Company to increase
the Conversion Rate with respect to such Make-Whole Fundamental
Change;
(iii) if an event occurs that requires, pursuant to this
Article X (other than solely pursuant to this Section 10.14), an
adjustment to the Conversion Rate, then, on the date and at the time
such adjustment is so required to be made, each price set forth in
the table above under the column titled "Applicable Price" shall be
deemed to be adjusted so that such price, at and after such time,
shall be equal to the product of (1) such price as in effect
immediately before such adjustment to such price and (2) a fraction
whose numerator is the Conversion Rate in effect immediately before
such adjustment to the Conversion Rate and whose denominator is the
Conversion Rate to be in effect, in accordance with this Article X,
immediately after such adjustment to the Conversion Rate;
(iv) each Applicable Increase amount set forth in the table
above shall be adjusted in the same manner in which, and for the same
events for which, the Conversion Rate is to be adjusted pursuant to
Section 10.01 through Section 10.13; and
(v) in no event shall the Conversion Rate applicable to any
Security be increased pursuant to this Section 10.14 to the extent,
but only to the extent, such increase shall not be permitted by the
continued listing standards of the New York Stock Exchange; provided,
however, that any reduction, pursuant to this Section 10.14(B)(v), in
such increase to the Conversion Rate shall be made by the Company in
good faith and, to the extent practical, pro rata in accordance with
the principal amount of Securities surrendered for conversion in
connection with the applicable Make-Whole Fundamental Change.
(C) As used herein, "Applicable Price" shall have the following
meaning with respect to a Make-Whole Fundamental Change: (a) if the
consideration (excluding cash payments for fractional shares or pursuant to
statutory appraisal rights) for the Common Stock in such Make-Whole
Fundamental Change consists solely of cash, then the "Applicable Price" with
respect to such Make-Whole Fundamental Change shall be equal to the cash
amount paid per share of Common Stock in such Make-Whole Fundamental Change;
and (b) in all other circumstances, the "Applicable Price" with respect to
such Make-Whole Fundamental Change shall be equal to the average of the
Closing Sale Prices per share of Common Stock for the five (5) consecutive
Trading Days immediately preceding the Effective Date of such Make-Whole
Fundamental Change, which average shall be appropriately adjusted by the Board
of Directors, in its good faith determination (which determination shall be
described in a Board Resolution), to account for any adjustment, pursuant
hereto, to the Conversion Rate that shall become effective, or any event
requiring, pursuant hereto, an adjustment to the Conversion Rate where the Ex
Date of such event occurs, at any time during such five (5) consecutive
Trading Days.
(D) The Company shall cause any Make-Whole Consideration payable,
pursuant to this Section 10.14, with respect to a Security, in connection with
the conversion of such Security pursuant to Article X, to be paid, through the
Conversion Agent, as soon as practicable, but in no event after the later of
(a) the date such Security is surrendered for such conversion and (b) the
fifth (5th) Business Day immediately following the Effective Date of the
applicable Make-Whole Fundamental Change. The consideration in which the
Make-Whole Consideration is payable shall be determined in accordance
herewith, including, without limitation, in accordance, to the extent
applicable, with Section 10.12.
(E) Within ten (10) days after a Make-Whole Fundamental Change has
occurred, the Company shall mail to each Holder, in accordance with Section
13.02, written notice of, and shall publicly announce, through a reputable
national newswire service, and publish on the Company's web site, such
Make-Whole Fundamental Change. Each such notice, announcement and publication
shall also state whether the Company has elected, in accordance with Section
10.14(F), to make an Acquirer Stock Conversion Right Adjustment with respect
to such Make-Whole Fundamental Change in lieu of increasing the Conversion
Rate pursuant to Section 10.14(A)..
(F) Notwithstanding anything to the contrary in this Section 10.14,
if the Company shall make any mailing, announcement or publication referred to
in Section 10.14(E) in respect of a Make-Whole Fundamental Change that shall
also constitute a Public Acquirer Fundamental Change, then the Company shall
have the right to, in lieu of increasing the Conversion Rate pursuant to
Section 10.14(A) in connection with such Make-Whole Fundamental Change, cause
the right to convert the Securities in accordance with this Article X to
change such that, from and after the effective time of such Public Acquirer
Fundamental Change, the right of each Holder of any Security to convert such
Security into cash and, if applicable, shares of Common Stock shall be changed
into the right to convert such Security solely into shares of Public Acquirer
Common Stock applicable to such Public Acquirer Fundamental Change and cash
for fractional shares thereof, at an initial Conversion Rate (which shall take
effect at such effective time, but which shall thereafter be subject to
adjustment in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to this Article X) equal to the
Conversion Rate in effect immediately before such effective time multiplied by
a fraction whose numerator is the Reference Price and whose denominator is the
average of the last reported sale prices per share of such Public Acquirer
Common Stock for the five (5) consecutive Trading Days commencing on, and
including, the Trading Day immediately after the effective date of such Public
Acquirer Fundamental Change, which average shall be appropriately adjusted by
the Board of Directors, in its good faith determination (which determination
shall be described in a Board Resolution), to account for any event that,
assuming such Public Acquirer Common Stock were Common Stock, would require,
pursuant hereto, an adjustment to the Conversion Rate to become effective, or
any such event whose Ex Date occurs, at any time during such five (5)
consecutive Trading Days. Any such change in the right to convert the
Securities in accordance with this Section 10.14(F) is herein referred to as
an "Acquirer Stock Conversion Right Adjustment."
If the Company shall have elected, in accordance with this Section
10.14(F), to make an Acquirer Stock Conversion Right Adjustment with respect
to a Public Acquirer Fundamental Change, then:
(i) the Company shall cause there to be executed and
delivered to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee, which supplemental indenture shall (a)
give due effect to such election in accordance with this Section
10.14(F), including, without limitation, evidencing a binding and
enforceable obligation of the issuer of the applicable Public
Acquirer Common Stock to satisfy the right of Holders to convert
Securities in accordance with this Article X and this Section
10.14(F); (b) be executed by, without limitation, such issuer; (c)
contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors in good faith
shall reasonably determine (which determination shall be described in
a Board Resolution); and (d) be in full force and effect no later
than the effective time of such Public Acquirer Fundamental Change;
(ii) the Company shall promptly file with the Trustee an
Officer's Certificate briefly stating the reasons for such
supplemental indenture, the nature of the change in the conversion
right pursuant to such Acquirer Stock Conversion Right Adjustment and
the Conversion Rate as adjusted therefor;
(iii) the provisions of Section 10.11 shall not apply to
such Public Acquirer Fundamental Change, provided such Public
Acquirer Fundamental Change shall have been duly given effect in
accordance with this Section 10.14(F); and
(iv) such election shall be irrevocable with respect to such
Public Acquirer Fundamental Change and shall be deemed to have been
made at the time the Company shall, with respect to such Public
Acquirer Fundamental Change, mail the first notice, or make the first
public announcement or publication, whichever shall occur earlier,
referred to in Section 10.14(E).
For avoidance of doubt, any change, pursuant to this Section
10.14(F), in the right of Holders to convert Securities shall apply to all
Holders.
As used herein, "Reference Price" shall have the following meaning
with respect to a Public Acquirer Fundamental Change: (a) if such Public
Acquirer Fundamental Change shall be a share exchange, consolidation, merger
or binding share exchange pursuant to which the Common Stock is converted into
cash, securities or other property, then the "Reference Price" with respect to
such Public Acquirer Fundamental Change shall mean the fair market value (as
determined in good faith by the Board of Directors, which determination shall
be described in a Board Resolution), as of the effective time of such Public
Acquirer Fundamental Change, of such cash, securities and other property paid
or payable pursuant to such Public Acquirer Fundamental Change per share of
Common Stock; and (b) in all other circumstances, the "Reference Price" with
respect to such Public Acquirer Fundamental Change shall mean the average of
the Closing Sale Prices per share of Common Stock for the five (5) consecutive
Trading Days immediately preceding, and excluding, the effective date of such
Public Acquirer Fundamental Change, which average shall be appropriately
adjusted by the Board of Directors, in its good faith determination (which
determination shall be described in a Board Resolution), to account for any
adjustment, pursuant hereto, to the Conversion Rate that shall become
effective, or any event requiring, pursuant hereto, an adjustment to the
Conversion Rate where the Ex Date of such event occurs, at any time during
such five (5) consecutive Trading Days.
(G) For avoidance of doubt, the provisions of this Section 10.14
shall not affect or diminish the Company's obligations, if any, pursuant to
Article V with respect to a Public Acquirer Fundamental Change or Make-Whole
Fundamental Change.
Nothing in this Section 10.14 shall prevent an adjustment to the
Conversion Rate pursuant to Section 10.06 in respect of a Make-Whole
Fundamental Change or a Public Acquirer Fundamental Change.
ARTICLE XI
SUBORDINATION
Section 11.01 Agreement To Subordinate.
The Company agrees, and each Securityholder by accepting a Security
agrees, that the payment of all amounts due with respect to the Securities is
subordinated in right of payment, to the extent and in the manner provided in
this Article XI, to the prior payment in full in cash or cash equivalents of
all Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed) and that the subordination is for
the benefit of the holders of Senior Indebtedness.
Section 11.02 Certain Definitions.
"Designated Senior Indebtedness" means all Indebtedness of the
Company under the Master Corporate Guaranty among the Company, certain
subsidiaries of PEI Holdings, Inc. and Bank of America, N.A., as Agent (as
hereinafter defined), dated as of March 11, 2003, as it has been or may be
amended, modified, restated, supplemented or extended from time to time with
respect to obligations of PEI Holdings, Inc. under the Credit Agreement by and
among PEI Holdings, Inc., Bank of America, N.A., as Administrative Agent (the
"Agent") and the other lenders party thereto, dated as of March 11, 2003, as
it has been or may be amended, modified, restated, supplemented or extended
(including, without limitation, by amending, modifying, restating,
supplementing or extending the maturity thereof) from time to time ("Senior
Credit Agreement") and, if applicable, any Indebtedness of the Company under
the Senior Credit Agreement, and any other Senior Indebtedness created after
the Issue Date in which the instrument creating or evidencing the Indebtedness
expressly provides that such Indebtedness is "Designated Senior Indebtedness"
with respect to the Securities.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Indebtedness.
"Senior Indebtedness" means all Indebtedness of the Company
outstanding at any time, except (i) the Securities, (ii) Indebtedness that by
its terms provides that it shall not be "senior" in right of payment to the
Securities, (iii) Indebtedness that by its terms provides that it shall be
"pari passu" or "junior" or "subordinated" in right of payment to the
Securities, (iv) Indebtedness for trade payables or any account payable or
other accrued current liability or obligation incurred in the ordinary course
of business in connection with the obtaining of materials or services and (v)
Indebtedness of the Company to any of its Subsidiaries.
Section 11.03 Liquidation; Dissolution; Bankruptcy.
In the event of any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets,
or any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary, or any assignment for the benefit of creditors or
other marshaling of assets or liabilities of the Company (except in connection
with the consolidation or merger of the Company or its liquidation or
dissolution following the sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property and assets of the
Company upon the terms and conditions of Article V), the holders of Senior
Indebtedness shall be entitled to receive payment in full in cash or cash
equivalents of all Senior Indebtedness, or provision shall be made for such
payment in full, before the Securityholders shall be entitled to receive any
payment or distribution of any kind or character on account of principal of,
or premium, if any, or interest, contingent interest or additional interest
on, the Securities; and any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Securityholders or the Trustee would be entitled
but for the provisions of this Article XI shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether
a trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their Representative or
Representatives ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
Section 11.04 Default On Designated Senior Indebtedness
No payment or distribution of any assets of the Company of any kind
or character, whether in cash, property or securities, may be made by or on
behalf of the Company on account of the principal of (including any Principal
Return with respect to), or interest, contingent interest or additional
interest, if any, on, the Securities or on account of a Purchase at Holder's
Option or Repurchase Upon Fundamental Change, Redemption or any other
repurchase or acquisition of Securities, upon the occurrence of any Payment
Default in respect of Designated Senior Indebtedness until such payment
default shall have been cured or waived in writing or shall have ceased to
exist or such Designated Senior Indebtedness shall have been discharged or
paid in full in cash or cash equivalents. A "Payment Default" shall mean a
default in payment, whether at scheduled maturity, upon a scheduled
installment, by acceleration or otherwise, of principal of (including any
Principal Return with respect to), or interest on, Designated Senior
Indebtedness beyond any applicable grace period.
If (i) there occurs any default or event of default with respect to
any Designated Senior Indebtedness, other than a Payment Default, pursuant to
which the maturity of such Designated Senior Indebtedness may be accelerated
(a "Non-Payment Default"), and (ii) the Trustee receives written notice (a
"Payment Blockage Notice") of such Non-Payment Default from the Company or a
Representative with respect to such Designated Senior Indebtedness, then no
payment or distribution of any assets of the Company of any kind or character,
whether in cash, property or securities, may be made during the Payment
Blockage Period (as defined below) by or on behalf of the Company on account
of the principal of, or premium, if any, or interest, contingent interest or
additional interest, if any, on, the Securities or on account of a Purchase at
Holder's Option or Repurchase Upon Fundamental Change, Redemption or any other
repurchase or acquisition of Securities.
The Payment Blockage Period shall mean the period (each a "Payment
Blockage Period") that shall commence upon receipt by the Trustee of the
Payment Blockage Notice, and shall end on the earliest of:
(i) one hundred seventy nine (179) days thereafter;
provided, that the Designated Senior Indebtedness to which the
non-payment default relates shall not theretofore have been
accelerated;
(ii) the date on which such Non-Payment Default is cured or
waived or ceases to exist;
(iii) the date on which such Designated Senior Indebtedness
is discharged or paid in full; or
(iv) the date on which such Payment Blockage Period shall
have been terminated by written notice to the Trustee from a
Representative of such Designated Senior Indebtedness.
After the termination of a Payment Blockage Period, the Company shall
resume making any and all required payments in respect of the Securities,
including any missed payments. In any event, not more than one Payment
Blockage Period may be commenced during any period of three hundred and sixty
five (365) consecutive days. No Non-Payment Default that existed or was
continuing on the date of the commencement of any Payment Blockage Period
shall be made the basis for the commencement of a subsequent Payment Blockage
Period, unless such Non-Payment default has been cured or waived for a period
of at least ninety (90) consecutive days subsequent to the commencement of
such initial Payment Blockage Period.
Section 11.05 Acceleration Of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.
Section 11.06 When Distribution Must Be Paid Over.
In the event that, notwithstanding the provisions of Sections 11.03
and 11.04, any payment or distribution of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder
which is prohibited by such provisions, then and in such event such payment
shall be held in trust for the benefit of, and shall be paid over and
delivered by such Trustee or Holder to, the trustee or Representative with
respect to holders of Senior Indebtedness, as their interest may appear, for
application to Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full in cash or cash equivalents after giving
effect to any concurrent distribution to or for the holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XI, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee, acting in good faith, shall pay
over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article XI or otherwise.
Section 11.07 Notice By The Company.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any obligations
with respect to the Securities to violate this Article XI, but failure to give
such notice shall not affect the subordination of the Securities to the Senior
Indebtedness as provided in this Article XI.
Section 11.08 Subrogation.
After all Senior Indebtedness is paid in full and until the
Securities are paid in full, Securityholders shall be subrogated (equally and
ratably with all other Indebtedness that is equal in right of payment to the
Securities) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Securityholders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article XI,
to holders of Senior Indebtedness that otherwise would have been made to
Securityholders is not, as between the Company and Securityholders a payment
by the Company of the Securities.
Section 11.09 Relative Rights.
This Article XI, defines the relative rights of Holders and holders
of Senior Indebtedness. Nothing in this Indenture shall: (i) impair, as
between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on the Securities
in accordance with their terms; (ii) affect the relative rights of Holders and
creditors of Holders other than their rights in relation to holders of Senior
Indebtedness; or (iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders of Securities. If the Company fails
because of this Article XI, to pay principal of or any premium or interest on
a Security on the Maturity Date, the failure is still a Default or Event of
Default.
Section 11.10 Subordination May Not Be Impaired By The Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.
Without in any way limiting the generality of this Section 11.10, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article XI, or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, amend, restate, supplement
or otherwise modify Senior Indebtedness, or any instrument evidencing the same
or any agreement under which Senior Indebtedness is outstanding or secured;
(b) sell, exchange, release, foreclose against or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against
the Company, and Subsidiary thereof or any other person.
Section 11.11 Distribution Or Notice To Representative.
Whenever a distribution is to be made or a notice given to holders of
any Senior Indebtedness, the distribution may be made and the notice given to
their Representative. Upon any payment or distribution of assets of the
Company referred to in this Article XI, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, all holders of the Senior Indebtedness
and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XI.
Section 11.12 Rights Of Trustee And Paying Agent.
Notwithstanding the provisions of this Article XI, or any other
provision of this Indenture, the Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution to or by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Securities, unless a Responsible
Officer of the Trustee shall have received at the Corporate Trust Office of
the Trustee at least three (3) Business Days prior to the date of such payment
written notice of facts that would cause the payment of any obligations with
respect to the Securities to violate this Article XI. Only the Company or a
trustee or Representative with respect to Senior Indebtedness may give such
written notice. Prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects to conclusively presume that no such facts
exist, and, unless the Trustee shall have theretofore received any such
written notice, the Trustee shall have full power and authority to receive any
such payment and to apply the same to the purposes for which it was received.
The foregoing shall not apply to any Affiliate of the Company acting as a
Paying Agent. Nothing in this Article XI, shall impair the claims of, or
payments to, the Trustee under or pursuant to Sections 6.10 or 7.07.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.
ARTICLE XII
TAX TREATMENT
Section 12.01 Tax Treatment.
(a) The Company hereby agrees and each Holder and any beneficial
holder of a Security by its purchase of a Security shall be deemed to agree
(in the absence of administrative or judicial determination to the contrary):
(1) to treat the Securities as indebtedness of the Company
for all United States federal income tax purposes;
(2) to treat the Securities as debt instruments that are
subject to Treasury Regulation section 1.1275-4(b);
(3) to treat the delivery of Common Stock or cash (including
cash delivered in lieu of a fractional share of Common Stock) to a
Holder of a Security upon conversion of such Security, as a
contingent payment (in an amount equal to the sum of the fair market
value of such Common Stock and any cash received (as determined in
good faith by the Board of Directors of the Company)) under Treasury
Regulation section 1.1275-4(b); and
(4) to accrue interest for United States federal income tax
purposes with respect to outstanding Securities as original issue
discount according to the "noncontingent bond method," as set forth
in Treasury Regulation section 1.1275-4(b), using a comparable yield
of 7.75%, compounded semiannually, and the projected payment schedule
as determined by the Company.
(b) Solely for purposes of applying Treasury Regulation section
1.1275-4 to the Securities:
(1) the Company shall file with the Trustee promptly
following the end of each calendar year (A) a written notice
specifying the amount of original issue discount for United States
federal income tax purposes accrued on outstanding Securities as of
the end of such year and (B) such other specific information relating
to such original issue discount that the Company determines to be
relevant under the Internal Revenue Code of 1986, as amended from
time to time, including the amount of any adjustment made under the
noncontingent bond method to account for the amount of any difference
between the amount of an actual payment and the amount of a projected
payment; and
(2) the Company acknowledges and agrees, and each Holder and
any beneficial holder of a Security, by its purchase of a Security
shall be deemed to acknowledge and agree, that (A) the comparable
yield and the projected payment schedule are not determined for any
purpose other than for the purpose of applying Treasury Regulation
section 1.1275-4(b) to the Security, (B) the comparable yield and the
projected payment schedule do not constitute a projection or
representation regarding the actual amounts payable on the
Securities, and (C) the Company's application of Treasury Regulation
section 1.1275-4(b), including the Company's determination of the
comparable yield and the projected payment schedule shall be binding
on each Holder and any beneficial holder of a Security (unless
otherwise required by administrative or judicial determination).
(c) Holders that wish to obtain the issue price, amount of original
issue discount, issue date, comparable yield and projected payment schedule
may do so by submitting a written request to the Company (to the attention of
the Treasurer) at the address set forth in Section 13.02 below.
ARTICLE XIII
MISCELLANEOUS
Section 13.01 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 of the TIA shall control.
Section 13.02 Notices.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person, mailed by
first-class mail or by express delivery to the other party's address stated in
this Section 13.02. The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Holder shall be mailed to its
address shown on the register kept by the Registrar. Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it; provided, however,
that anything herein to the contrary notwithstanding, no notice or
communication to the Trustee shall be deemed to be duly given or valid unless
and until it is actually received by the Trustee at the Corporate Trust Office
of the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Security Agent at the same time.
All notices or communications shall be in writing.
The Company's address is:
Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
The Trustee's address is:
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services
Section 13.03 Communication By Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 13.04 Certificate And Opinion As To Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officer's Certificate stating that, in the opinion of
the signatory thereto, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(ii) if requested by the Trustee, an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Such Officer's Certificate and Opinion of Counsel shall be addressed
and furnished to the Trustee. Each signatory to an Officer's Certificate or an
Opinion of Counsel may (if so stated) rely, effectively, upon an Opinion of
Counsel as to legal matters and an Officer's Certificate as to factual matters
if such signatory reasonably and in good faith believes in the accuracy of the
document relied upon. Each Opinion of Counsel may rely upon certificates of
public officials as to factual matters if such signatory reasonably and in
good faith believes in the accuracy of such certificates relied upon.
Section 13.05 Statements Required In Certificate Or Opinion.
If required by the TIA, each Officer's Certificate or Opinion of
Counsel with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such person, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Section 13.06 Rules By Trustee And Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar, Paying Agent or Conversion Agent may make
reasonable rules and set reasonable requirements for their respective
functions.
Section 13.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the City of New York, in the State
of New York or in the city in which the Trustee administers its corporate
trust business. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on that payment for the
intervening period.
A "Business Day" is a day other than a Legal Holiday.
Section 13.08 Duplicate 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. Delivery of an executed counterpart by facsimile shall be effective
as delivery of a manually executed counterpart thereof.
Section 13.09 Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities.
Section 13.10 No Adverse Interpretation Of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.11 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 13.12 Separability.
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 and a Holder shall have no claim therefor against any party hereto.
Section 13.13 Table Of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 13.14 Calculations In Respect Of The Securities.
The Company and its agents (including, without limitation, the Bid
Solicitation Agent) shall make all calculations under this Indenture and the
Securities in good faith. In the absence of manifest error, such calculations
shall be final and binding on all Holders. The Company shall provide a copy of
such calculations to the Trustee as required hereunder, and, absent such
manifest error, the Trustee shall be entitled to rely on the accuracy of any
such calculation without independent verification.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
PLAYBOY ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Treasurer and Strategic
Planning and Assistant
Secretary
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: First Vice President
EXHIBIT A
[Face of Security]
[Insert Private Placement Legend or Global Security Legend]
PLAYBOY ENTERPRISES, INC.
3.00% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025
Certificate No.: _____ U.S.$ _____
CUSIP No.: _____
Issue Date: _____ ISIN No.: _____
Playboy Enterprises, Inc., a corporation organized under the laws of
Delaware (the "Company"), for value received, hereby promises to pay to Cede &
Co., or its registered assigns, the principal sum of __________ dollars
($__________) on March 15, 2025 and to pay interest thereon, as provided on
the reverse hereof, until the principal and any unpaid and accrued interest
are paid or duly provided for.
Interest Payment Dates: March 15 and September 15, with the first
payment to be made on September 15, 2005.
Record Dates: March 1 and September 1.
The provisions on the back of this certificate are incorporated as if
set forth on the face hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Playboy Enterprises, Inc. has caused this
instrument to be duly signed.
PLAYBOY ENTERPRISES, INC.
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
LA SALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
(Authorized Signatory)
Name:
Title:
Date:
[Reverse of Security]
PLAYBOY ENTERPRISES, INC.
3.00% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025
1. Interest. Playboy Enterprises, Inc., a corporation organized under
the laws of Delaware (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above, payable
semi-annually in arrears, on each March 15 and September 15 of each year,
beginning on September 15, 2005. Interest on the Securities shall accrue on
the principal amount from, and including, March 15, 2005, or from, and
including, the last date in respect of which interest has been paid or
provided for, as the case may be, to, but excluding, the next interest payment
date or Maturity Date, as the case may be. The Company shall pay interest on
this Security on the basis of a 360-day year of twelve 30-day months.
In addition, the Company shall pay contingent interest ("Contingent
Interest") in cash to the Holders during any six-month period (a "Contingent
Interest Period") from March 15 to and including September 14 and from
September 15 to and including March 14, commencing with the six-month period
beginning March 15, 2012, if the average Trading Price of the Securities
during the five consecutive Trading Day period preceding the third Trading Day
before the first day of the Contingent Interest Period equals at least one
hundred and twenty percent (120%) of the principal amount of the Securities.
The Company shall instruct the Bid Solicitation Agent to determine
the daily Trading Prices of the Securities during each applicable five
consecutive Trading Day period. The Bid Solicitation Agent shall calculate the
Trading Price in the same manner it calculates the Trading Price for
conversion of the Securities upon satisfaction of the Trading Price Condition
as described in Section 10.01(A)(ii) of the Indenture (as defined below);
provided, however, that the Company shall, without any request of any Holder,
instruct the Bid Solicitation Agent to determine the daily Trading Prices of
the Securities during each applicable five consecutive Trading Day period.
Upon a determination by the Company that Holders shall be entitled to receive
Contingent Interest with respect to a Contingent Interest Period, the Company
shall, on or prior to the first day of such Contingent Interest Period,
publicly announce, and provide a notice to the Trustee of, the amount of such
Contingent Interest payable per $1,000 principal amount of Securities.
The amount of Contingent Interest payable per $1,000 principal amount
of Securities in respect of any Contingent Interest Period, if applicable,
shall be equal to a per annum rate of 0.25% of the average Trading Price of
such Security during the applicable five consecutive Trading Day period ending
on and including the third Trading Day immediately preceding the first day of
the applicable six-month period. Contingent Interest, if any, shall accrue and
be payable to Holders in the same manner as regular cash interest. Regular
cash interest shall continue to accrue at the per annum rate of 3.00% on the
principal amount of the Securities whether or not Contingent Interest is paid.
2. Maturity. The Securities mature on March 15, 2025.
3. Method of Payment. Except as provided in the Indenture (as defined
below), the Company shall pay interest on the Securities to the persons who
are Holders of record of Securities at the close of business on the record
date set forth on the face of this Security next preceding the applicable
interest payment date. Holders must surrender Securities to a Paying Agent and
comply with the other terms of the Indenture to collect the principal amount,
Redemption Price, Option Purchase Price or Fundamental Change Repurchase Price
of the Securities, plus, if applicable, accrued and unpaid interest, if any,
payable as herein provided upon Redemption, Purchase at Holder's Option or
Repurchase Upon Fundamental Change, as the case may be. The Company shall pay,
in money of the United States that at the time of payment is legal tender for
payment of public and private debts, all amounts due in cash with respect to
the Securities on the dates and in the manner provided in this Security and
the Indenture (as defined below) which amounts, if payable hereunder in cash,
shall be paid (A) in the case this Security is in global form, by wire
transfer of immediately available funds to the account specified by the Holder
hereof and (B) in the case a Security is held, other than in global form, by a
Holder who is the record holder of more than five million dollars ($5,000,000)
aggregate principal amount of Securities, by wire transfer of immediately
available funds to the account specified by such Holder or, if no such account
is specified, or if such Security is held, other than in global form, by a
Holder who is the record holder of five million dollars ($5,000,000) or less
in aggregate principal amount of Securities, by mailing a check to such
Holder's address shown in the register of the Registrar.
4. Paying Agent, Registrar, Conversion Agent. Initially, LaSalle Bank
National Association (the "Trustee") shall act as Paying Agent, Registrar, Bid
Solicitation Agent and Conversion Agent.
5. Indenture. The Company issued the Securities under an Indenture
dated as of March 15, 2005 (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the U.S. Trust Indenture Act
of 1939 (the "TIA"), as amended and in effect from time to time. The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. To the extent any
provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Securities are general unsecured senior subordinated obligations of the
Company limited to $100,000,000 aggregate principal amount, except as
otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used
herein without definition and which are defined in the Indenture have the
meanings assigned to them in the Indenture.
6. Optional Redemption.
The Company shall have the right, at the Company's option, on a
Redemption Date which is on or after March 15, 2010, to redeem all or any part
of the Securities at a price payable in cash equal to the Redemption Price,
plus accrued and unpaid interest, if any, to, but excluding, the Redemption
Date, if the Closing Sale Price of the Common Stock for each of 20 or more
consecutive Trading Days in a period of 30 consecutive Trading Days exceeds
120% of the Conversion Price in effect on the 30th day before the mailing of a
notice of Redemption.
The Company shall have the right, at the Company's option, at any
time, and from time to time, on a Redemption Date on or after March 15, 2012,
to redeem all or any part of the Securities at a price payable in cash equal
to the Redemption Price, plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date.
Upon surrender to the Paying Agent of a Security subject to
Redemption, all amounts due with respect to a Security shall be paid to the
Holder surrendering such Security; provided, however, that if the Redemption
Date is an interest payment date, the interest becoming due on such date shall
be paid to the Holder of record of such Security at the close of business on
the record date for such interest payment and shall not be included in the
accrued and unpaid interest otherwise payable upon Redemption. The Company
shall make at least ten (10) semi-annual interest payments with respect to the
Securities prior to redeeming any Securities at its option pursuant to this
paragraph 6.
7. Notice of Redemption. A notice of Redemption shall be mailed at
least thirty (30) days but not more than sixty (60) days before a Redemption
Date to each Holder of Securities to be redeemed at the address of such Holder
appearing in the register of the Registrar. Securities may be redeemed in part
but only in integral multiples of $1,000 principal amount.
8. Purchase by the Company at the Option of the Holder. Subject to
the terms and conditions of the Indenture, the Company shall purchase, at the
option of the Holder, the Securities held by such Holder on March 15, 2012,
March 15, 2015 and March 15, 2020 (each, an "Option Purchase Date") at an
Option Purchase Price, payable in cash, equal to one hundred percent (100%) of
the principal amount of the Securities (or such portions thereof) to be
purchased, plus accrued and unpaid interest, if any, to, but excluding, the
applicable Option Purchase Date, upon delivery of a Purchase Notice in the
form set forth in this Security (or any other form of written notice delivered
in good faith and substantially similar thereto), at any time from 9:00 a.m.,
New York City time, on the date that is twenty (20) Business Days prior to the
applicable Option Purchase Date until 5:00 p.m., New York City time, on the
Business Day immediately preceding the applicable Option Purchase Date and
upon delivery of the Securities as set forth in the Indenture and compliance
with the other terms of the Indenture.
Holders have the right to withdraw any Purchase Notice by delivery of
a written notice of withdrawal at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the applicable Option Purchase
Date in accordance with the provisions of the Indenture.
9. Repurchase at Option of Holder Upon a Fundamental Change. Subject
to the terms and conditions of the Indenture, in the event any Fundamental
Change shall occur, each Holder of the Securities shall have the right, at
such Holder's option, to require the Company to repurchase all of such
Holder's Securities (or portions thereof), on a date selected by the Company
(the "Fundamental Change Repurchase Date"), which Fundamental Change
Repurchase Date shall be no later than thirty (30) days after the date the
Fundamental Change Notice is mailed in accordance with the Indenture, at a
price, payable in cash, equal to one hundred percent (100%) of the principal
amount of the Security (or portions hereof) to be so repurchased, plus accrued
and unpaid interest, if any, to, but excluding, the Fundamental Change
Repurchase Date, upon (i) delivery of a Purchase Notice (or any other form of
written notice delivered in good faith and substantially similar thereto), no
later than 5:00 p.m., New York City time, on the third (3rd) Business Day
immediately preceding the Fundamental Change Repurchase Date, and upon
delivery of the Securities as set forth in the Indenture and compliance with
the other terms of the Indenture.
10. Conversion. Subject to earlier Redemption, Purchase at Holder's
Option or Repurchase Upon Fundamental Change, the Securities shall be
convertible into cash and, if applicable, shares of Common Stock at such times
and upon compliance with such conditions set forth in, and in accordance with,
the Indenture.
To convert a Security, a Holder must (1) complete and sign the
conversion notice ("Conversion Notice"), with appropriate signature guarantee,
on the back of the Security, (2) surrender the Security to a Conversion Agent,
(3) furnish appropriate endorsements and transfer documents if required by the
Registrar or Conversion Agent, (4) pay the amount of interest, if any, the
Holder must pay in accordance with the Indenture and (5) pay any tax or duty
if required pursuant to the Indenture. Subject to the restrictions set forth
in Section 2.02 of the Indenture, a Holder may convert a portion of a Security
if the portion is $1,000 principal amount or an integral multiple of $1,000
principal amount. Once given, a Conversion Notice may not be rescinded.
The initial Conversion Rate shall be 58.7648 shares of Common Stock
per $1,000 principal amount of Securities (which results in an effective
initial Conversion Price of approximately $17.02 per share), subject to
adjustment in the event of certain circumstances as specified in the
Indenture. The Company shall deliver a check in lieu of any fractional share.
If a Holder surrenders a Security for conversion after the close of business
on the record date for the payment of an installment of interest and prior to
the related interest payment date, such Security, when surrendered for
conversion, must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder at the close of business on such record
date is to receive (other than overdue interest, if any, that has accrued on
such Security), unless such Security has been called for Redemption as
described in the Indenture.
The Conversion Rate applicable to each Security that is surrendered
for conversion, in accordance with the Securities and Article X of the
Indenture, at any time on or before the 30th day after the date the Company
announces a Make-Whole Fundamental Change has occurred, shall be increased to
an amount equal to the Conversion Rate that would, but for Section 10.14 of
the Indenture, otherwise apply to such Security pursuant to Article X of the
Indenture, plus an amount equal to the Make-Whole Conversion Rate Adjustment;
provided, however, that such increase to the Conversion Rate shall not apply
if such Make-Whole Fundamental Change constitutes a Public Acquirer
Fundamental Change with respect to which the Company shall have duly made, and
given full effect to, an election, pursuant to and in accordance with Section
10.14(F) of the Indenture, to make an Acquirer Stock Conversion Right
Adjustment.
Any shares of Common Stock that are issued upon conversion of a
Security shall bear the Private Placement Legend until after the second
anniversary of the later of the Issue Date and the last date on which the
Company or any Affiliate was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed by the Company and the
Holder thereof).
11. Denominations, Transfer, Exchange. The Securities are in
registered form, without interest coupons, and only in minimum denominations
of $1,000 principal amount and integral multiples thereof. The transfer of
Securities may be registered and Securities may be exchanged as provided in
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents. No service charge
shall be made for any transfer, exchange or conversion of Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge that may be imposed in connection with any
transfer, exchange or conversion of Securities other than as provided in the
Indenture. The Company or the Trustee, as the case may be, shall not be
required to exchange or register the transfer of any Security (i) for a period
of fifteen (15) days before selecting, pursuant to Section 3.03 of the
Indenture, Securities to be redeemed or (ii) during the period beginning at
the opening of business fifteen (15) days before the mailing of a notice of
Redemption of the Securities selected for Redemption under Section 3.04 of the
Indenture and ending at the close of business on the day of such mailing or
(iii) that has been selected for Redemption or for which a Purchase Notice has
been delivered, and not withdrawn, in accordance with the Indenture, except
the unredeemed or unrepurchased portion of Securities being redeemed or
repurchased in part.
12. Persons Deemed Owners. The registered Holder of a Security may be
treated as the owner of such Security for all purposes.
13. Merger or Consolidation. The Company shall not consolidate with,
or merge with or into, or sell, transfer, lease, convey or otherwise dispose
of all or substantially all of the property and assets of the Company to,
another person, whether in a single transaction or series of related
transactions, except in accordance with Section 5.01 of the Indenture.
14. Amendments, Supplements and Waivers. The Indenture or the
Securities may be amended or supplemented in accordance with Article IX of the
Indenture.
15. Defaults and Remedies. If an Event of Default (excluding an Event
of Default specified in Section 6.01(H) or (I) of the Indenture with respect
to the Company (but including an Event of Default specified in Section 6.01(H)
or (I) of the Indenture solely with respect to a Significant Subsidiary of the
Company or any group of Subsidiaries that in the aggregate would constitute a
Significant Subsidiary of the Company)) has occurred and is continuing, the
Trustee by notice to the Company or the Holders of at least twenty five
percent (25%) in aggregate principal amount of the Securities then outstanding
by notice to the Company and the Trustee may declare the principal of and any
accrued and unpaid interest, including additional interest, if any, on all
Securities to be immediately due and payable. Upon such declaration, the
principal of, and accrued and unpaid interest, including additional interest,
if any, on all Securities shall be due and payable immediately. If an Event of
Default specified in Section 6.01(H) or (I) of the Indenture with respect to
the Company (excluding, for purposes of this sentence, an Event of Default
specified in Section 6.01(H) or (I) of the Indenture solely with respect to a
Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs,
the principal of, and accrued and unpaid interest, including additional
interest, if any, on, all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in aggregate principal
amount of the Securities then outstanding by written notice to the Trustee may
rescind or annul an acceleration and its consequences if (A) the rescission
would not conflict with any governmental or court order or decree, (B) all
existing Events of Default, except the nonpayment of principal or interest
that has become due solely because of the acceleration, have been cured or
waived and (C) all amounts due to the Trustee under Section 7.07 of the
Indenture have been paid.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or the Indenture, is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability or expense unless the Trustee is offered indemnity
reasonably satisfactory to it against the costs, expenses and liabilities that
the Trustee may incur to comply with such request or demand; provided, that
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
16. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness. Each Holder, by accepting a
Security, agrees to the subordination provisions of the Indenture and
authorizes the Trustee to give them effect.
17. Registration Rights. The Holders are entitled to registration
rights as set forth in the Registration Rights Agreement. The Holders shall be
entitled to receive additional interest in certain circumstances, all as set
forth in the Registration Rights Agreement.
18. Trustee Dealings with the Company. The Trustee under the
Indenture, or any banking institution serving as successor Trustee thereunder,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for, the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
19. No Recourse Against Others. No past, present or future director,
officer, employee or stockholder, as such, of the Company shall 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. Each Holder, by accepting a Security, waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
20. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent in accordance with the Indenture.
21. Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to:
Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
[Form Of Assignment]
I or we assign to
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(please insert social security or other identifying number)
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(please print or type name and address)
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the within Security and all rights thereunder, and hereby irrevocably constitute
and appoint
-------------------------------------------------------------------------------
Attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
Date:
------------------------- -----------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Security in
every particular without
alteration or enlargement or any
change whatsoever and be
guaranteed by a guarantor
institution participating in the
Securities Transfer Agents
Medallion Program or in such other
guarantee program acceptable to
the Trustee.
Signature Guarantee: __________________________________________________________
In connection with any transfer of this Security occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the U.S. Securities Act of
1933, as amended, covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
the Resale Restriction Termination Date, the undersigned confirms that it is
making, and it has not utilized any general solicitation or general
advertising in connection with, the transfer:
[Check One]
(1) ____ to the Company or any Subsidiary thereof, or
(2) ____ pursuant to, and in compliance with, the exemption from
registration provided by Rule 144A under the U.S.
Securities Act of 1933, as amended, or
(3) ____ pursuant to, and in compliance with, the exemption from
registration provided by Rule 144 under the U.S.
Securities Act of 1933, as amended, or
(4) ____ pursuant to, and in compliance with, an exemption from
registration under the U.S. Securities Act of 1933, as
amended, other than Rule 144A or Rule 144, or
(5) ____ pursuant to an effective registration statement under the
U.S. Securities Act of 1933, as amended,
and, unless the space below is checked, the undersigned confirms that this
Security is not being transferred to an "affiliate" of the Company (an
"Affiliate") as defined in Rule 144 under the Securities Act of 1933, as
amended:
____ The transferee is an Affiliate of the Company. (If the Security
is transferred to an Affiliate, the restrictive legend must remain on the
Security for at least two (2) years following the date of the transfer.)
Unless one of the items (1) through (5) is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of
any person other than the registered Holder thereof; provided, however, that
if item (3) or (4) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in their sole discretion,
such written legal opinions, certifications and other information as the
Trustee or the Company have reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the U.S. Securities Act of 1933, as
amended. If item (2) is checked, the purchaser must complete the certification
below.
If none of the foregoing items are checked, the Trustee or Registrar shall not
be obligated to register this Security in the name of any person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been satisfied.
Date: Signed:
---------------------------- ----------------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee: __________________________________________________________
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED]
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
and acknowledges that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Date:
--------------------------------- -----------------------------------
NOTICE: To be executed by an
executive officer
[Form of Conversion Notice]
To convert this Security in accordance with the Indenture, check the following
space: ____
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$__________________
If you want the stock certificate representing the shares of Common Stock, if
any, issuable upon conversion made out in another person's name, fill in the
form below:
(please insert social security or other identifying number)
_______________________________________________________________________________
(please print or type name and address)
_______________________________________________________________________________
Date: Signed:
------------------------------ ----------------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee: __________________________________________________________
(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer
Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.)
[Form of Purchase Notice]
Certificate No. of Security: ___________
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.08 of the Indenture, check the following space: ____
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.09 of the Indenture, check the following space: ____
If you want to elect to have only part of this Security purchased by the
Company pursuant to Sections 3.08 or 3.09 of the Indenture, as applicable,
state the principal amount to be so purchased by the Company (must be in
multiples of $1,000):
$__________________
Date: Signed:
---------------------------- ----------------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee: __________________________________________________________
(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer
Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.)
SCHEDULE A
Schedule of Exchanges of Interests in the Global Security(a)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for Securities in certificated form,
have been made:
Amount of decrease Principal amount of Signature or
in Principal amount Amount of increase in this Global Security authorized signatory
of this Global Principal amount of following such of Trustee or
Date of Exchange Security this Global Security decrease or increase Note Custodian
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(a) To be included in Global Securities only
EXHIBIT B-1
[Form of Private Placement Legend]
This Security (or its predecessor) was originally issued in a
transaction exempt from registration under the U.S. Securities Act of 1933
(the "Securities Act"), as amended, and this Security and the Class B common
stock, if any, issuable upon conversion of this Security have not been
registered under the Securities Act, and may not be offered, sold, pledged or
otherwise transferred except in accordance with the following sentence. By its
acquisition hereof or of a beneficial interest herein, the acquirer:
1. represents that it and any account for which it is acting is
a "qualified institutional buyer" (within the meaning of
Rule 144A under the Securities Act) and that it exercises
sole investment discretion with respect to each such
account;
2. agrees that it will not directly or indirectly engage in any
hedging transactions involving this Security or the Class B
common stock issuable upon conversion of this Security
unless in compliance with the Securities Act; and
3. agrees for the benefit of the Company that it will not
offer, sell, pledge or otherwise transfer this Security or
any beneficial interest herein prior to the date that is the
later of (x) two years after the later of the original issue
date hereof and the last date on which the Company or any
affiliate of the Company was the owner of this Security (or
any predecessor of this Security) or such shorter period of
time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder, and (y) such later date,
if any, as may be required by applicable law, except only:
(a) to the Company or any subsidiary thereof;
(b) pursuant to a registration statement which has
become effective under the Securities Act;
(c) to a "qualified institutional buyer" in compliance
with Rule 144A under the Securities Act; or
(d) pursuant to an exemption from registration provided
by Rule 144 under the Securities Act or any other
available exemption from the registration
requirements of the Securities Act.
Prior to the registration of any transfer in accordance with (3)(c)
above, a duly completed and signed certificate (the form of which may be
obtained from the Trustee) must be delivered to the Trustee. Prior to the
registration of any transfer in accordance with (3)(d) above, the Company and
the Trustee reserve the right to require the delivery of such legal opinions,
certifications or other evidence as may reasonably be required in order to
determine that the proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws. No representation is made
as to the availability of any exemption from the registration requirements of
the Securities Act.
The holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated March 15, 2005, among Playboy
Enterprises, Inc., UBS Securities LLC, Banc of America Securities LLC, and
Bear, Xxxxxxx & Co. Inc. and, by its acceptance hereof, agrees to be bound by
and to comply with the provisions of such Registration Rights Agreement.
EXHIBIT B-2
[Form of Tax Legend]
For purposes of Sections 1272, 1273 and 1275 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), this Security is being issued
with tax original issue discount. The issue price of this Security is $1,000
per $1,000 of principal amount and the issue date of the Security is March 15,
2005. In addition, this Security is subject to U.S. federal income tax
regulations governing contingent payment debt instruments. For purposes of
Sections 1272, 1273 and 1275 of the Code, the comparable yield of this
Security is 7.75% (which will be treated as the yield to maturity for U.S.
federal income tax purposes). The Company agrees, and by purchasing a
beneficial ownership interest in the Securities each Holder of Securities will
be deemed to have agreed, for U.S. federal income tax purposes (1) to treat
the Securities as a debt instrument that is subject to Treasury Regulations
Section 1.1275-4(b) or any successor provision (the "Contingent Payment
Regulations"), (2) to treat the cash and the fair market value of any stock
received upon conversion of this Security as a contingent payment for purposes
of the contingent payment regulations, (3) to accrue interest with respect to
this Security as original issue discount for U.S. federal income tax purposes
according to the "noncontingent bond method" set forth in the contingent
payment regulations, and (4) to be bound by the Company's determination of the
"comparable yield" and "projected payment schedule," each within the meaning
of the Contingent Payment Regulations, with respect to this Security. The
Company agrees to provide promptly to Holders of Securities, upon written
request, the issue date, yield to maturity, comparable yield and projected
payment schedule. Any such written request should be sent to the Company at
the following address:
Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
EXHIBIT B-3
[Form of Legend for Global Security]
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
depositary or a nominee of a depositary or a successor depositary. This
Security is not exchangeable for Securities registered in the name of a person
other than the depositary or its nominee except in the limited circumstances
described in the Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the depositary to a nominee of the
depositary or by a nominee of the depositary to the depositary or another
nominee of the depositary) may be registered except in the limited
circumstances described in the Indenture. Unless this certificate is presented
by an authorized representative of the Depository Trust Company, a New York
Corporation ("DTC"), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Transfers of this Global Security shall be limited to transfers in
whole, but not in part, to nominees of Cede & Co. 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 Section 2.16 of the Indenture.
EXHIBIT C
[Form of Notice of Transfer Pursuant to Registration Statement]
Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Re: Playboy Enterprises, Inc. (the "Company") 3.00% Convertible Senior
Subordinated Notes due 2025 (the "Securities")
Ladies and Gentlemen:
Please be advised that _____________ has transferred $_____________
aggregate principal amount of the Securities and _____________ shares of the
Class B Common Stock of the par value of One Cent ($.01) per share of the
Company issued on conversion of the Securities ("Stock") pursuant to an
effective shelf registration statement on Form S-3 (File No.
333-_____________).
The undersigned hereby certifies that the prospectus delivery
requirements, if any, of the U.S. Securities Act of 1933 as amended, have been
satisfied with respect to the transfer described above and that the
above-named beneficial owner of the Securities or Stock is named as a "Selling
Securityholder" in the Prospectus dated _____________, or in amendments or
supplements thereto, and that the aggregate principal amount of the Securities
and the number of shares of Stock transferred are [a portion of] the
Securities and Stock listed in such Prospectus, as amended or supplemented,
opposite such owner's name.
Very truly yours,
------------------------------
(Name)
