Exhibit 4.4
SIERRA HEALTH SERVICES, INC.
2.25% Senior Convertible Debentures Due 2023
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INDENTURE
Dated as of March 3, 2003
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XXXXX FARGO BANK MINNESOTA, N.A.
TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1
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DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01. Definitions......................................................................1
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Section 1.02. Other Definitions................................................................6
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Section 1.03. Incorporation By Reference Of Trust Indenture Act................................7
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Section 1.04. Rules Of Construction............................................................7
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Section 1.05. Acts of Holders..................................................................8
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ARTICLE 2
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THE SECURITIES
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Section 2.01. Form And Dating..................................................................9
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Section 2.02. Execution And Authentication....................................................10
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Section 2.03. Registrar, Paying Agent, Conversion Agent And Calculation Agent.................11
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Section 2.04. Paying Agent To Hold Money And Securities In Trust..............................11
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Section 2.05. Securityholder Lists............................................................12
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Section 2.06. Transfer And Exchange...........................................................12
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Section 2.07. Replacement Securities..........................................................13
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Section 2.08. Outstanding Securities; Determinations Of Holders' Action.......................14
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Section 2.09. Temporary Securities............................................................15
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Section 2.10. Cancellation....................................................................15
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Section 2.11. Persons Deemed Owners...........................................................16
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Section 2.12. Global Securities...............................................................16
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Section 2.13. CUSIP Numbers...................................................................21
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Section 2.14. Ranking.........................................................................21
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ARTICLE 3
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REDEMPTION AND PURCHASES
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Section 3.01. Company's Right To Redeem; Notices To Trustee...................................22
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Section 3.02. Selection Of Securities To Be Redeemed..........................................22
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Section 3.03. Notice Of Redemption............................................................23
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Section 3.04. Effect Of Notice Of Redemption..................................................24
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Section 3.05. Deposit Of Redemption Price.....................................................24
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Section 3.06. Securities Redeemed In Part.....................................................24
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Section 3.07. Purchase Of Securities By The Company At Option Of The Holder...................24
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Section 3.08. Purchase Of Securities At Option Of The Holder Upon Change Of Control...........26
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Section 3.09. Company's Right To Elect Manner Of Payment Of Purchase Price And Change
Of Control Purchase Price For Payment...........................................31
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Section 3.10 . Covenants of the Company........................................................36
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Section 3.11. Taxes...........................................................................36
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Section 3.12. Effect Of Purchase Notice Or Change Of Control Purchase Notice..................36
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Section 3.13. Deposit Of Purchase Price Or Change Of Control Purchase Price...................38
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Section 3.14. Securities Purchased In Part....................................................38
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Section 3.15. Covenant To Comply With Securities Laws Upon Purchase Of Securities.............39
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Section 3.16. Repayment To The Company........................................................39
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ARTICLE 4
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COVENANTS
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Section 4.01. Payment of Securities...........................................................39
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Section 4.02. SEC And Other Reports...........................................................40
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Section 4.03. Compliance Certificate..........................................................40
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Section 4.04. Further Instruments And Acts....................................................40
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Section 4.05. Maintenance Of Office Or Agency.................................................41
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Section 4.06. Delivery Of Certain Information.................................................41
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Section 4.07. Liquidated Damages Notice.......................................................41
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ARTICLE 5
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SUCCESSOR PERSON
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Section 5.01. When Company May Merge Or Transfer Assets.......................................42
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ARTICLE 6
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DEFAULTS AND REMEDIES
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Section 6.01. Events Of Default...............................................................43
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Section 6.02. Acceleration....................................................................45
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Section 6.03. Other Remedies..................................................................46
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Section 6.04. Waiver Of Past Defaults.........................................................46
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Section 6.05. Control By Majority.............................................................46
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Section 6.06. Limitation On Suits.............................................................47
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Section 6.07. Rights Of Holders To Receive Payment............................................47
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Section 6.08. Collection Suit By Trustee......................................................47
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Section 6.09. Trustee May File Proofs Of Claim................................................48
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Section 6.10. Priorities......................................................................48
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Section 6.11. Undertaking For Costs...........................................................49
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Section 6.12. Waiver Of Stay, Extension Or Usury Laws.........................................49
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ARTICLE 7
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TRUSTEE
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Section 7.01. Duties Of Trustee...............................................................49
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Section 7.02. Rights Of Trustee...............................................................51
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Section 7.03. Individual Rights Of Trustee....................................................52
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Section 7.04. Trustee's Disclaimer............................................................52
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Section 7.05. Notice Of Defaults..............................................................52
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Section 7.06. Reports By Trustee To Holders...................................................53
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Section 7.07. Compensation And Indemnity......................................................53
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Section 7.08. Replacement Of Trustee..........................................................54
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Section 7.09. Successor Trustee By Merger.....................................................55
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Section 7.10. Eligibility; Disqualification...................................................55
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Section 7.11. Preferential Collection Of Claims Against Company...............................55
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ARTICLE 8
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DISCHARGE OF INDENTURE
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Section 8.01. Discharge Of Liability On Securities............................................55
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Section 8.02. Repayment To The Company........................................................55
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ARTICLE 9
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AMENDMENTS
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Section 9.01. Without Consent Of Holders......................................................56
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Section 9.02. With Consent Of Holders.........................................................57
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Section 9.03. Compliance With Trust Indenture Act.............................................58
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Section 9.04. Revocation And Effect Of Consents, Waivers And Actions..........................58
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Section 9.05. Notation On Or Exchange Of Securities...........................................59
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Section 9.06. Trustee To Sign Supplemental Indentures.........................................59
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Section 9.07. Effect Of Supplemental Indentures...............................................59
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ARTICLE 10
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CONVERSIONS
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Section 10.01. Conversion Privilege...........................................................59
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Section 10.02. Conversion Procedure; Conversion Price; Fractional Shares......................61
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Section 10.03. Adjustment of Conversion Rate..................................................63
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Section 10.04. Effect of Reclassification, Consolidation, Merger or Sale......................72
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Section 10.05. Taxes on Shares Issued.........................................................73
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Section 10.06. Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock...........................................73
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Section 10.07. Responsibility of Trustee......................................................74
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Section 10.08. Notice To Holders Prior To Certain Actions.....................................75
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Section 10.09. Rights Issued in Respect of Common Stock Issued upon Conversion................76
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Section 10.10. Unconditional Right Of Holders To Convert......................................76
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ARTICLE 11
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MISCELLANEOUS
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Section 11.01. Trust Indenture Act Controls...................................................76
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Section 11.02. Notices........................................................................77
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Section 11.03. Communication By Holders With Other Holders....................................77
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Section 11.04. Certificate And Opinion As To Conditions Precedent.............................78
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Section 11.05. Statements Required In Certificate Or Opinion..................................78
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Section 11.06. Separability Clause............................................................78
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Section 11.07. Rules By Trustee, Paying Agent, Conversion Agent and Registrar.................78
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Section 11.08. Legal Holidays.................................................................78
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Section 11.09. GOVERNING LAW..................................................................79
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Section 11.10. No Recourse Against Others.....................................................79
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Section 11.11. Successors.....................................................................79
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Section 11.12. Multiple Originals.............................................................79
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EXHIBIT A......... Form of Global Security
EXHIBIT B......... Form of Certificated Security
EXHIBIT C......... Transfer Certificate
INDENTURE dated as of March 3, 2003 between SIERRA HEALTH SERVICES, INC., a
Nevada corporation ("Company"), and XXXXX FARGO BANK MINNESOTA, N.A.
("Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's 2.25% Senior
Convertible Debentures Due 2023:
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01....... Definitions.
"144A Global Security" means a permanent Global Security in the form of the
Security attached hereto as Exhibit A, and that is deposited with and registered
in the name of the Depositary, representing Securities sold in reliance on Rule
144A under the Securities Act.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Applicable Stock" means (i) the Common Stock and (ii) in the event of a
merger, consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, ordinary shares or American Depositary Shares of
such surviving corporation or its direct or indirect parent corporation
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" means a resolution of the Board of Directors.
"Business Day" means, with respect to any Security, a day that in the City
of New York, is not a day on which banking institutions are authorized by law or
regulation to close.
"Calculation Agent" means initially Xxxxx Fargo Bank Minnesota, N.A. and
its successors and assigns.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit B.
"Common Stock" means the common stock, $0.005 par value per share, of the
Company existing on the date of this Indenture or any other shares of Capital
Stock of the Company into which such Common Stock shall be reclassified or
changed.
"Company" means the party named as the "Company" in the first Section of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers.
"Conversion Price" as of any date means $1,000 divided by the Conversion
Rate as of such date.
"Conversion Rate" has the meaning set forth in Section 10.02(a) hereof.
"Corporate Trust Office" means the principal office of the Trustee at which
at any time its corporate trust business shall be administered, which office at
the date hereof is located at Xxxxx Fargo Bank Minnesota, N.A., Corporate Trust
Services, MAC N9303-000, Xxxxx & Xxxxxxxxx, Xxxxxxxxxxx, XX 00000 or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Credit Agreement" means the Credit Agreement dated as of March 3, 2003
among the Company, certain subsidiaries of the Company named therein, Bank of
America, N.A., the other lenders party thereto, Credit Lyonnais New York Branch,
U.S. Bank National Association and Bank of America Securities LLC.
"Designated Subsidiary" shall mean any existing or future, direct or
indirect, Subsidiary of the Company whose assets constitute 15% or more of the
total assets of the Company on a consolidated basis.
"Global Securities" means Securities that are in the form of the Securities
attached hereto as Exhibit A, and that are registered in the register of
Securities in the name of a Depositary or a nominee thereof, and to the extent
that such Securities are required to bear the Legend required by Section 2.06,
such Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest" means interest payable on each Security pursuant to Section 1 of
the Securities.
"Interest Payment Date" means March 15 and September 15 of each year,
commencing September 15, 2003.
"Interest Record Date" means March 1 and September 1 of each year.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Liquidated Damages" means the interest that is payable by the Company
pursuant to the Registration Rights Agreement upon a Registration Default (as
defined in such agreement).
"Market Price" means, with respect to shares of Applicable Stock, the
average of the Sale Prices of the shares of Applicable Stock for the 20-Trading
Day period immediately preceding and including the third day prior to the
applicable Purchase Date or Change of Control Purchase Date, as the case may be,
(if the third Business Day prior to the applicable Purchase Date is a Trading
Day, or if not, then on the last Trading Day prior to the third Business Day),
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of the Trading Days during the 20-Trading Day period and
ending on the Purchase Date or Change of Control Purchase Date, as the case may
be, of any event described in Sections 10.03 or 10.04.
"NYSE" means The New York Stock Exchange, Inc.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
Chief Financial Officer, the President, any Vice President, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 11.04 and 11.05, from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Purchase Agreement" means the Purchase Agreement dated as of February 25,
2003 between the Company and Banc of America Securities LLC, as representative
of the initial purchasers named therein.
"Redemption Date" means the date specified in a notice of redemption on
which the Securities may be redeemed in accordance with the terms of the
Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set forth
in Section 3.01.
"Registration Rights Agreement" means the Resale Registration Rights
Agreement, dated as of the date hereof, between the Company and Banc of America
Securities LLC, as representative of the several initial purchasers under the
Purchase Agreement.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer associated with the corporate trust
department of the Trustee who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Security" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A and B of this
Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Sale Price" means, with respect to any security on any day, the closing
sale price, regular way, on such day or, in case no such sale takes place on
such day, the average of the reported closing bid and asked prices, regular way,
in each case as quoted on the NYSE consolidated tape or, if such security is not
quoted or listed or admitted to trading on the NYSE consolidated tape, on the
principal national securities exchange or quotation system on which such
security is quoted or listed or admitted to trading or, if not quoted or listed
or admitted to trading on any national securities exchange or quotation system,
the average of the closing bid and asked prices of such security on the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished by any NYSE member
firm selected from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof, whose
determination shall be conclusive.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's 2.25% Senior Convertible Debentures
Due 2023, as amended or supplemented from time to time, issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" or "Holder" means a person in whose name a Security is
registered on the Registrar's books.
"Stated Maturity", when used with respect to any Security, means March 15,
2023.
"Subsidiary" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the NYSE or, if the Common Stock is not listed for trading on the
NYSE, on the principal other national or regional securities exchange on which
the Common Stock then is listed or, if the Common Stock is not listed for
trading on a national or regional securities exchange, on the National
Association of Securities Dealers Automated Quotation System or, if the Common
Stock is not quoted on the National Association of Securities Dealers Automated
Quotation System, on the principal other market on which the Common Stock is
then traded.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Voting Stock" of a person means Capital Stock of such person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
Section 1.02....... Other Definitions.
Defined in
Terms: Section:
"Adjustment Event"............................................ 10.03(k)
"Agent Members"............................................... 2.12(e)
"Applicable Stock"............................................ 3.08(c)
"beneficial owner"............................................ 3.08(a)
"cash"........................................................ 3.09(a)
"Change of Control"........................................... 3.08(a)
"Change of Control Purchase Date"............................. 3.08(a)
"Change of Control Purchase Notice"........................... 3.08(c)
"Change of Control Purchase Price"............................ 3.08(a)
"Company Notice".............................................. 3.09(d)
"Company Notice Date"......................................... 3.09(b)
"Continuing Director"......................................... 3.08(a)
"Conversion Agent"............................................ 2.03
"Current Market Price"........................................ 10.03(g)
"DTC" ........................................................ 2.01(a)
"Depositary".................................................. 2.01(a)
"Designated Subsidiary"....................................... 6.01
"Determination Date".......................................... 10.03(k)
"Distributed Assets".......................................... 10.03(d)
"Event of Default"............................................ 6.01
"Ex-Dividend Time"............................................ 10.01(b)
"Exchange Act"................................................ 2.12(e)
"Expiration Time"............................................. 10.03(f)
"Extraordinary Cash Dividend" ................................ 10.03(e)
"Fair Market Value" or "fair market value".................... 10.03(g)
"Fiscal Quarter".............................................. 10.01(a)
"Institutional Accredited Investors".......................... 2.12(a)(iv)
"Legal Holiday"............................................... 11.08
"Legend"...................................................... 2.06(f)
"Liquidated Damages Notice" .................................. 4.07
"Market Price"................................................ 3.09(c)
"non-electing share".......................................... 10.04
"Notice of Conversion"........................................ 10.02(b)
"Notice of Default"........................................... 6.01
"Paying Agent"................................................ 2.03
"Purchase Date"............................................... 3.07
"Purchase Notice"............................................. 3.07
"Purchase Price".............................................. 3.07
"Purchased Shares"............................................ 10.03(f)
"QIB"......................................................... 2.01(a)
"Record Date"................................................. 10.03(g)
"Registrar"................................................... 2.03
"Rights"...................................................... 10.09
"Rights Agreement"............................................ 10.09
"Rule 144A Information"....................................... 4.06
"Trigger Event"............................................... 10.03(d)
Section 1.03 Incorporation By Reference Of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
Section 1.04 Rules Of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
Section 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company, as described in
Section 11.02. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to such
officer the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer's individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of such signer's authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person executing
the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial number of any Security and
the ownership of Securities shall be proved by the register for the
Securities.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall
have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Article 2
THE SECURITIES
Section 2.01. Form And Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of
Exhibits A and B, which are a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or
endorsement required by usage is in a form acceptable to the Company).
The Company shall provide any such notations, legends or endorsements
to the Trustee in writing. Each Security shall be dated the date of
its authentication.
(a) 144A Global Securities. Securities offered and sold within
the United States to qualified institutional buyers as defined in Rule
144A ("QIBs") in reliance on Rule 144A shall be issued, initially in
the form of a 144A Global Security, which shall be deposited with the
Trustee at its Corporate Trust Office, as custodian for the Depositary
(as defined below) and registered in the name of The Depository Trust
Company ("DTC") or the nominee thereof (DTC, or any successor thereto,
and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the
144A Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary
as hereinafter provided.
(b) Global Securities in General. Each Global Security shall
represent such of the outstanding Securities as shall be specified
therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.12 hereof and shall be made on the
records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply only
to Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depositary, (b) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions and (c) shall be
substantially in the form of Exhibit A attached hereto.
(d) Certificated Securities. Securities not issued as interests
in the Global Securities will be issued in certificated form
substantially in the form of Exhibit B attached hereto.
Section 2.02. Execution And Authentication. The Securities shall
be executed on behalf of the Company by any Officer. The signature of
the Officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Securities
Officers shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such
offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature
of an authorized signatory, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver the Securities for
original issue in an aggregate principal amount of up to $100,000,000
(up to $115,000,000 aggregate principal amount if the initial
purchaser's option set forth in the Purchase Agreement is exercised in
full) upon one or more Company Orders without any further action by
the Company (other than as contemplated in Section 11.04 and Section
11.05 hereof). The aggregate principal amount of the Securities due at
the Stated Maturity thereof outstanding at any time may not exceed the
amount set forth in the foregoing sentence.
The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 of principal amount and
any integral multiple of $1,000.
Section 2.03. Registrar, Paying Agent, Conversion Agent And
Calculation Agent. The Company shall maintain an office or agency
where Securities may be presented for registration of transfer or for
exchange ("Registrar"), an office or agency where Securities may be
presented for purchase or payment ("Paying Agent") and an office or
agency where Securities may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more
co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any
additional paying agent, including any named pursuant to Section 4.05.
The term Conversion Agent includes any additional conversion agent,
including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent, Conversion Agent, Calculation Agent or
co-registrar (in each case, if such Registrar, agent or co-registrar
is a Person other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The
Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent, Calculation Agent and Paying Agent in connection
with the Securities.
Section 2.04. Paying Agent To Hold Money And Securities In Trust.
Except as otherwise provided herein, on or prior to each due date of
payments in respect of any Security, the Company shall deposit with
the Paying Agent a sum of money (in immediately available funds if
deposited on the due date) or shares of Common Stock sufficient to
make such payments when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and shares of Common Stock
held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company
in making any such payment. At any time during the continuance of any
such default, the Paying Agent shall, upon the written request of the
Trustee, forthwith pay to the Trustee all money and shares of Common
Stock so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money
and shares of Common Stock held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying
Agent to pay all money and shares of Common Stock held by it to the
Trustee and to account for any funds and Common Stock disbursed by it.
Upon doing so, the Paying Agent shall have no further liability for
the money or shares of Common Stock.
Section 2.05. Securityholder Lists. The Trustee shall preserve
the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company
shall cause to be furnished to the Trustee at least semiannually on
February 15 and August 15 a listing of Securityholders dated within 15
days of the date on which the list is furnished and at such other
times as the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
Section 2.06. Transfer And Exchange. (a) Subject to Section 2.12
hereof, upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's
attorney duly authorized in writing, at the office or agency of the
Company designated as Registrar or co-registrar pursuant to Section
2.03, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall
not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges that may be
imposed in connection with the transfer or exchange of the Securities
from the Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a
like aggregate principal amount upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory
to the Registrar duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at such office
or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
The Company shall not be required to make, and the Registrar need
not register, transfers or exchanges of Securities selected for
redemption (except, in the case of Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Securities in respect
of which a Purchase Notice or Change of Control Purchase Notice has
been given and not withdrawn by the Holder thereof in accordance with
the terms of this Indenture (except, in the case of Securities to be
purchased in part, the portion thereof not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long
as a Global Security remains outstanding and is held by or on behalf
of the Depositary, transfers of a Global Security, in whole or in
part, shall be made only in accordance with Section 2.12 and this
Section 2.06(b). Transfers of a Global Security shall be limited to
transfers of such Global Security in whole or in part, to the
Depositary, to nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and
each such registration shall be noted on the register for the
Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of
Securities upon transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Securities during any periods designated in
the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and
bearing the legends set forth on the forms of Security attached hereto
as Exhibits A and B setting forth such restrictions (collectively, the
"Legend"), or if a request is made to remove the Legend on a Security,
the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the
Company and the Registrar such satisfactory evidence, which shall
include an opinion of counsel, as may be reasonably required by the
Company and the Registrar and the Trustee (if not the same Person as
the Trustee), that neither the Legend nor the restrictions on transfer
set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act
or that such Securities are not "restricted" within the meaning of
Rule 144 under the Securities Act. Upon (i) provision of such
satisfactory evidence, or (ii) notification by the Company to the
Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the
Trustee, at the written direction of the Company, shall authenticate
and deliver a Security that does not bear the Legend. If the Legend is
removed from the face of a Security and the Security is subsequently
held by the Company or an Affiliate of the Company, the Legend shall
be reinstated.
Section 2.07. Replacement Securities. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the
Trustee receive evidence to their satisfaction of the destruction,
loss or theft of any Security, and there is delivered to the Company
and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a
certificate number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be
purchased by the Company pursuant to Article 3 hereof, the Company in
its discretion may, instead of issuing a new Security, pay or purchase
such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07,
the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 2.08. Outstanding Securities; Determinations Of Holders'
Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those
paid pursuant to Section 2.07, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. A
Security does not cease to be outstanding because the Company or an
Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of
Securities have given or concurred in any request, demand,
authorization, direction, notice, consent, waiver, or other Act
hereunder, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent,
waiver or other act, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time of
such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6
and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on
a Redemption Date, or on the Business Day following a Purchase Date or
a Change of Control Purchase Date, or on Stated Maturity, money or
securities, if permitted hereunder, sufficient to pay Securities
payable on that date, then immediately after such Redemption Date,
Purchase Date, Change of Control Purchase Date or Stated Maturity, as
the case may be, such Securities shall cease to be outstanding and
Interest and Liquidated Damages, if any, on such Securities shall
cease to accrue; provided, that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made.
If a Security is converted in accordance with Article 10, then
from and after the time of conversion on the date of conversion, such
Security shall cease to be outstanding and Interest and Liquidated
Damages, if any, shall cease to accrue on such Security.
Section 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 2.03, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
Section 2.10. Cancellation. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3, conversion,
redemption or registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not issue
new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to
Article 10. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in
accordance with the Trustee's customary procedure.
Section 2.11. Persons Deemed Owners. Prior to due presentment of
a Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose
name such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal amount of the Security
or any portion thereof, or the payment of any Redemption Price,
Purchase Price or Change of Control Purchase Price in respect thereof,
and Interest or Liquidated Damages thereon, for the purpose of
conversion and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 2.12. Global Securities. Notwithstanding any other
provisions of this Indenture or the Securities, (A) transfers of a
Global Security, in whole or in part, shall be made only in accordance
with Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a
beneficial interest in a Global Security for a Certificated Security
shall comply with Section 2.06, Section 2.12(a)(ii) below and Section
2.12(e)(1) below, and (C) transfers of a Certificated Security shall
comply with Section 2.06 and Sections 2.12(a)(iii) and 2.12(a)(iv)
below.
(i) Transfer of Global Security. A Global Security may not
be transferred, in whole or in part, to any person other than the
Depositary or a nominee or any successor thereof, and no such
transfer to any such other person may be registered; provided
that this clause 2.12(a)(i) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is
not itself a Global Security. No transfer of a Security to any
person shall be effective under this Indenture or the Securities
unless and until such Security has been registered in the name of
such person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions
of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Security for a Certificated Security. A beneficial
interest in a Global Security may not be exchanged for a
Certificated Security except upon satisfaction of the
requirements set forth below and in Section 2.12(e)(1) below.
Upon receipt by the Trustee of a transfer of a beneficial
interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory
to the Trustee, together with:
(A) so long as the Securities are Restricted
Securities, certification in the form set forth in Exhibit
C;
(B) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect a
decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to
contain information regarding the Depositary account to be
credited with such decrease; and
(C) if the Company so requests, an opinion of counsel
or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of the Securities represented
by the Global Security to be decreased by the aggregate principal amount of the
Certificated Security to be issued, shall issue such Certificated Security and
shall debit or cause to be debited to the account of the person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated
Securities; or
(z) to exchange such Certificated Securities for an
equal principal amount of Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to clause
(A), (B) or (C) below, and are accompanied by the following additional
information and documents, as applicable:
(A) if such Certificated Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that effect;
or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from registration, (i)
a certification to that effect (in the form set forth in
Exhibit C, if applicable) and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit C, that such
Certificated Security (A) is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or (B) is
being transferred pursuant to and in compliance with Rule 144
under the Securities Act; and
(II) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an
increase in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with
such increase, then the Trustee shall cancel such Certificated
Security and cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate principal
amount of Securities represented by the Global Security to be
increased by the aggregate principal amount of the Certificated
Security to be exchanged, and shall credit or cause to be
credited to the account of the person specified in such
instructions a beneficial interest in the Global Security equal
to the principal amount of the Certificated Security so
cancelled. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers'
Certificate, a new Global Security in the appropriate principal
amount.
(b) Subject to the succeeding Section 2.12(c), every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit C, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged
for a new Security, of like tenor and aggregate principal amount, which shall
not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under
the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the term
"transfer" encompasses any sale, pledge, transfer, loan, hypothecation, or other
disposition of any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any person other than the
Depositary or one or more nominees thereof, provided that a Global Security
may be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (i) the Depositary has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and a successor Depositary is not appointed
by the Company within 90 days or (ii) an Event of Default has occurred and
is continuing with respect to the Securities. Any Global Security exchanged
pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (ii) above may
be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any such Security
so issued that is registered in the name of a person other than the
Depositary or a nominee thereof shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall
bear the applicable legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to the Trustee,
as Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by
means of an appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any person, including
Agent Members (as defined below) and persons that may hold interests
through Agent Members, to take any action which a holder is entitled to
take under this Indenture or the Securities.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the Trustee a
reasonable supply of Certificated Securities in definitive, fully
registered form.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security registered in the name of the Depositary or
any nominee thereof, or under any such Global Security, and the Depositary
or such nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
and holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
Section 2.13. CUSIP Numbers. The Company may issue the Securities with one
or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.14. Ranking. The indebtedness of the Company arising under or in
connection with this Indenture and every outstanding Security issued under this
Indenture from time to time constitutes and will constitute a senior unsecured
general obligation of the Company, ranking equally with other existing and
future senior unsecured Indebtedness of the Company and ranking senior in right
of payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness. For purposes of
this Section 2.14 only, "Indebtedness" means, without duplication, the principal
or face amount of (i) all obligations for borrowed money, (ii) all obligations
evidenced by debentures, notes or other similar instruments, (iii) all
obligations in respect of letters of credit or bankers acceptances or similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations to pay the deferred purchase price of property or services, (v) all
obligations as lessee which are capitalized in accordance with generally
accepted accounting principles, and (vi) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its
Subsidiaries is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).
Article 3
REDEMPTION AND PURCHASES
Section 3.01. Company's Right To Redeem; Notices To Trustee. Prior to March
20, 2008, the Securities will not be redeemable at the Company's option.
Beginning on March 20, 2008, the Company, at its option, may redeem the
Securities in accordance with the provisions of Section 5 of the Securities for
cash at any time as a whole, or from time to time in part, at a redemption price
(the "Redemption Price") equal to the principal amount of the Securities
redeemed plus accrued and unpaid Interest, and accrued and unpaid Liquidated
Damages, if any, on the Securities redeemed to (but excluding) the Redemption
Date. If the Company elects to redeem Securities pursuant to Section 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date, the
principal amount of Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 45 days but not more than 60 days
before the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
Securities called for redemption may be surrendered for conversion from the
date of notice of the redemption until the close of business on the Business Day
immediately preceding the Redemption Date.
Section 3.02. Selection Of Securities To Be Redeemed. If less than all of
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed by
lot, on a pro rata basis or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange on which the Securities are then listed). The Trustee shall make the
selection within five Business Days after it receives the notice provided for in
Section 3.01 from outstanding Securities not previously called for redemption.
The Trustee may select for redemption portions of the principal amount of
Securities that have denominations larger than $1,000.
Securities and portions of Securities that the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of the Securities to be redeemed.
Securities and portions of Securities that are to be redeemed are
convertible, pursuant to Section 10.01(a)(2), by the Holder until the close of
business on the Business Day prior to the Redemption Date. If any Security
selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities that have been converted during a
selection of Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection.
Section 3.03. Notice Of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any time
before the close of business on the Business Day prior to the
Redemption Date;
(6) that Holders who want to convert their Securities must satisfy the
requirements set forth in Section 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(8) if fewer than all of the outstanding Securities are to be redeemed,
the certificate numbers, if any, and principal amounts of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such Redemption
Price, Interest and Liquidated Damages, if any, on Securities called
for redemption will cease to accrue on and after the Redemption Date;
and
(10) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense, provided that the Company
makes such request at least seven Business Days prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section
3.03.
Section 3.04. Effect Of Notice Of Redemption. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice except for Securities
which are converted in accordance with the terms of this Indenture. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Xxxxx stated in the notice.
Section 3.05. Deposit Of Redemption Price. Prior to 10:00 a.m. (New York
City time), on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 10. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 3.06. Securities Redeemed In Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered.
Section 3.07. Purchase Of Securities By The Company At Option Of The
Holder. Securities shall be purchased by the Company pursuant to Section 6 of
the Securities at the option of the Holder on March 15, 2008, March 15, 2013 and
March 15, 2018 (each, a "Purchase Date"), at a purchase price equal to the
principal amount of those Securities, plus accrued and unpaid Interest and
accrued and unpaid Liquidated Damages, if any, on those Securities, to (but
excluding) such Purchase Date (the "Purchase Price"), subject to the provisions
of Section 3.09. Purchases of Securities hereunder shall be made, at the option
of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "Purchase Notice") during the period beginning at any
time from the opening of business on the date that is 20 Business
Days prior to the relevant Purchase Date until the close of
business on the third Business Day prior to such Purchase Date
stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate Depositary
procedures if Certificated Securities have not been issued
for such Security,
(B) the portion of the principal amount of the Security which
the Holder will deliver to be purchased, which portion must
be in principal amounts of $1,000 or an integral multiple of
$1,000,
(C) that such Security shall be purchased by the Company as of
the Purchase Date pursuant to the terms and conditions
specified in Section 6 of the Securities and in this
Indenture, and
(D) in the event the Company elects, pursuant to Section
3.09(c), to pay the Purchase Price, in whole or in part, in
shares of Common Stock but such portion of the Purchase
Price shall ultimately be paid to such Holder entirely in
cash because any of the conditions to payment of the
Purchase Price in shares of Common Stock are not satisfied
prior to the close of business on the third Business Day
prior to the relevant Purchase Date, as set forth in Section
3.09, whether such Holder elects (i) to withdraw such
Purchase Notice as to some or all of the Securities to which
such Purchase Notice relates (stating the principal amount
and certificate numbers, if any, of the Securities as to
which such withdrawal shall relate), or (ii) to receive cash
in respect of the entire Purchase Price for all Securities
(or portions thereof) to which such Purchase Notice relates;
and
(2) delivery of such Security to the Paying Agent at any time after
delivery of the Purchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery
being a condition to receipt by the Holder of the Purchase Price
therefor; provided, however, that such Purchase Price shall be so
paid pursuant to this Section 3.07 only if the Security so
delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Purchase Notice.
If a Holder, in such Xxxxxx's Purchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of
Section 3.09, fails to indicate such Xxxxxx's choice with respect to the
election set forth in clause (D) of Section 3.07(1), such Holder shall be
deemed to have elected to receive cash in respect of the entire Purchase
Price for all Securities subject to such Purchase Notice in the
circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.07, a portion of a Security, if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.07 shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Purchase
Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.07
shall have the right to withdraw such Purchase Notice at any time prior to
the close of business on the Business Day immediately prior to the Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 3.12.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
Section 3.08. Purchase Of Securities At Option Of The Holder Upon
Change Of Control. If a Change of Control occurs (subject to certain
exceptions set forth below), the Securities not previously purchased by the
Company shall be purchased by the Company, at the option of the Holder
thereof, at a purchase price equal to the principal amount of those
Securities, plus accrued and unpaid Interest and accrued and unpaid
Liquidated Damages, if any, on those Securities (the "Change of Control
Purchase Price"), as of the date that is 30 days after the date of the
notice of Change of Control delivered by the Company pursuant to Section
3.08(b) (the "Change of Control Purchase Date"), subject to satisfaction by
or on behalf of the Holder of the requirements set forth in Section
3.08(c).
A "Change of Control" will be deemed to have occurred at such time
after the Securities are originally issued when any of the following events
shall occur:
(A) the acquisition by any person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the
Exchange Act of beneficial ownership, directly or indirectly
through a purchase, merger or other acquisition transaction
or series of purchase, merger or other acquisition
transactions, of shares of the Capital Stock of the Company
entitling that person to exercise 50% or more of the total
voting power of all shares of the Capital Stock of the
Company entitled to vote generally in elections of
directors, other than any acquisition by the Company, any of
its subsidiaries, or any of the employee benefit plans of
the Company (except that any of those persons shall be
deemed to have beneficial ownership of all securities it has
the right to acquire, whether the right is currently
exercisable or is exercisable only upon the occurrence of a
subsequent condition); or
(B) the first day on which a majority of the members of the
board of directors of the Company are not Continuing
Directors; or
(C) the Company consolidates or merges with or into any other
person, any merger of another person into the Company, or
any conveyance, transfer, sale, lease or other disposition,
substantially as an entirety, of the Company's properties
and assets to another person, other than: (A) any
transaction: (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's Capital Stock; and (2)
pursuant to which holders of the Company's Capital Stock
immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total
voting power of all shares of Capital Stock entitled to vote
generally in elections of directors of the continuing or
surviving Person immediately after giving effect to such
issuance; and (B) any merger, share exchange, transfer of
assets or similar transaction solely for the purpose of
changing the Company's jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of
outstanding shares of Common Stock, if at all, solely into
shares of common stock, ordinary shares or American
Depositary Shares of the surviving Person or a direct or
indirect parent of the surviving corporation.
A "Continuing Director" shall mean:
(1) An individual who was a member of the Board of Directors
of the Company first elected by the stockholders or by the Board
of Directors prior to the date hereof or prior to the time that
any person becomes after the date hereof the holder of record of
in excess of 20% of the Capital Stock of the Company entitled to
vote in the election of directors; or
(2) An individual nominated for election or elected as a
director by a majority of the then Continuing Directors.
(ii) Notwithstanding the provisions of Section 3.08(a)(i), the Company
shall not be required to purchase the Securities of the Holders upon a
Change of Control pursuant to this Section 3.08 if:
(A) the Sale Price per share of Common Stock for any five
Trading Days within the period of 10 consecutive Trading
Days (x) ending immediately after the later of the Change of
Control or the public announcement of the Change of Control
in the case of a Change of Control set forth under clauses
(A) or (B) of the definition of Change of Control above, or
(y) ending immediately before the Change of Control in the
case of a Change of Control set forth under clause (C) of
the definition of Change of Control above, equals or exceeds
120% of the Conversion Price of the Securities in effect on
each of those five Trading Days; or
(B) One hundred percent of the consideration in the transaction
or transactions (other than cash payments for fractional
shares and cash payments made in respect of dissenters'
appraisal rights) constituting a Change of Control consists
of shares of common stock, ordinary shares or American
Depositary Shares traded or to be traded immediately
following a Change of Control on a national securities
exchange or the Nasdaq National Market, and, as a result of
the transaction or transactions, the Securities become
convertible into that common stock, ordinary shares or
American Depositary Shares (and any rights attached
thereto).
For the purposes of this Section 3.08, (x) whether a person is a
"beneficial owner" shall be determined in accordance with Rule 13d-3 under
the Exchange Act and (y) the term "person" includes any syndicate or group
that would be deemed to be a "person" under Section 13(d)(3) of the
Exchange Act.
(b) No later than 30 days after the occurrence of a Change of Control,
the Company shall mail a written notice of the Change of Control by first
class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Change of
Control Purchase Notice to be completed by the Holder and shall state:
(i) briefly, the events causing a Change of Control and the date
of such Change of Control;
(ii) the date by which the Change of Control Purchase Notice
pursuant to this Section 3.08 must be delivered to the Paying Agent in
order for a Holder to exercise the repurchase rights;
(iii) the Change of Control Purchase Date;
(iv) the Change of Control Purchase Price;
(v) whether the Change of Control Purchase Price will be paid in
cash or Applicable Stock, or a combination thereof;
(vi) the name and address of the Paying Agent and the Conversion
Agent;
(vii) the Conversion Rate;
(viii) that the Securities as to which a Change of Control
Purchase Notice has been given may be converted if they are otherwise
convertible pursuant to Article 10 hereof only if the Change of
Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(ix) that the Securities must be surrendered to the Paying Agent
to collect payment;
(x) that the Change of Control Purchase Price for any Security as
to which a Change of Control Purchase Notice has been duly given and
not withdrawn will be paid promptly following the later of the Change
of Control Purchase Date and the time of surrender of such Security as
described in clause (ix);
(xi) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.08;
(xii) briefly, the conversion rights, if any, on the Securities;
(xiii) the procedures for withdrawing a Change of Control
Purchase Notice;
(xiv) that, unless the Company defaults in making payment of such
Change of Control Purchase Price, Interest and Liquidated Damages, if
any, on Securities surrendered for purchase by the Company will cease
to accrue on and after the Change of Control Purchase Date; and
(xv) the CUSIP number(s) of the Securities.
(c) A Holder may exercise its rights specified in Section 3.08(a) upon
delivery of a written notice of purchase (a "Change of Control Purchase
Notice") to the Paying Agent at any time on or prior to the close of
business on the Business Day immediately preceding the Change of Control
Purchase Date stating:
(i) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate Depositary procedures if
Certificated Securities have not been issued;
(ii) the portion of the principal amount of the Security which
the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple of $1,000;
(iii) that such Security shall be purchased pursuant to the terms
and conditions specified in Section 6 of the Securities and in this
Indenture; and
(iv) in the event the Company elects, pursuant to Section 3.09,
to pay the Change of Control Purchase Price, in whole or in part, in
shares of Applicable Stock but such portion of the Change of Control
Purchase Price shall ultimately be paid to such Holder entirely in
cash because any of the conditions to payment of the Change of Control
Purchase Price in shares of Applicable Stock is not satisfied prior to
the close of business on the third Business Day prior to the relevant
Change of Control Purchase Date, as set forth in Section 3.09, whether
such Holder elects (i) to withdraw such Change of Control Purchase
Notice as to some or all of the Securities to which such Change of
Control Purchase Notice relates (stating the principal amount and
certificate numbers, if any, of the Securities as to which such
withdrawal shall relate), or (ii) to receive cash in respect of the
entire Change of Control Purchase Price for all Securities (or
portions thereof) to which such Change of Control Purchase Notice
relates.
The delivery of such Security to the Paying Agent with the Change of
Control Purchase Notice (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change of Control Purchase Price therefor; provided, however,
that such Change of Control Purchase Price shall be so paid pursuant to
this Section 3.08 and Section 3.09 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof set
forth in the related Change of Control Purchase Notice.
If a Holder, in such Holder's Change of Control Purchase Notice and in
any written notice of withdrawal delivered by such Holder pursuant to the
terms of Section 3.12, fails to indicate such Holder's choice with respect
to the election set forth in Section 3.08(c)(iv), such Holder shall be
deemed to have elected to receive cash in respect of the entire Change of
Control Purchase Price for all Securities subject to such Change of Control
Purchase Notice in the circumstances set forth in such Section 3.08(c)(iv).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08 and Section 3.09, a portion of a Security if the principal
amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 and Section 3.09 shall be consummated by the delivery of
the consideration to be received by the Holder on the Change of Control
Purchase Date.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change of Control Purchase Notice contemplated by
this Section 3.08(c) shall have the right to withdraw such Change of
Control Purchase Notice at any time prior to the close of business on the
last Business Day immediately preceding the Change of Control Purchase Date
by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 3.12.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change of Control Purchase Notice or written withdrawal thereof.
Section 3.09. Company's Right To Elect Manner Of Payment Of Purchase
Price And Change Of Control Purchase Price For Payment. The Securities to
be purchased on any Purchase Date or Change of Control Purchase Date, as
the case may be, pursuant to Section 3.07 and Section 3.08, respectively,
may be paid for, in whole or in part, at the election of the Company, in
U.S. legal tender ("cash") or shares of Applicable Stock, or in any
combination of cash and shares of Applicable Stock, subject to the
conditions set forth in Sections 3.09(c) and Section 3.09(d); provided that
if the Company is not permitted, pursuant to the terms of the Credit
Agreement or any other agreement or indebtedness, to pay cash for any
portion of the Securities to be purchased on any Purchase Date or any
Change of Control Purchase Date, the Company shall elect to pay for all
such Securities solely in shares of Applicable Stock. The Company shall
designate, in the Company Notice delivered pursuant to Section 3.09(d),
whether the Company will purchase the Securities for cash or shares of
Applicable Stock, or, if a combination thereof, the percentages of the
Purchase Price or Change of Control Purchase Price, as the case may be, of
Securities in respect of which it will pay in cash or shares of Applicable
Stock; provided that the Company will pay cash for fractional interests in
shares of Applicable Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities
are purchased pursuant to Section 3.07 or 3.08, as the case may be, shall
receive the same percentage of cash or shares of Applicable Stock in
payment of the Purchase Price or Change of Control Purchase Price, as the
case may be, for such Securities, except (i) as provided in this Section
3.09(a) with regard to the payment of cash in lieu of fractional shares of
Applicable Stock and (ii) in the event that the Company is unable to
purchase the Securities of a Holder or Holders for shares of Applicable
Stock because any necessary qualifications or registrations of the shares
of Applicable Stock under applicable state securities laws cannot be
obtained, or because the conditions to purchasing the Securities for shares
of Applicable Stock set forth in Section 3.09(c) have not been satisfied,
the Company may purchase the Securities of such Holder or Holders for cash.
The Company may not change its election with respect to the consideration
(or components or percentages of components thereof) to be paid once the
Company has given its Company Notice to Holders except pursuant to Section
3.09(b) or pursuant to Section 3.09(c) in the event of a failure to
satisfy, prior to the close of business on the third Business Day
immediately preceding the Purchase Date or Change of Control Purchase Date,
as the case may be, any condition to the payment of the Purchase Price or
Change of Control Purchase Price, as the case may be, in whole or in part,
in shares of Applicable Stock.
At least three Business Days before each Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.09(d) in the
Company Notice,
(iii) if the Company elects to pay the Purchase Price or
Change of Control Purchase Price, as the case may be, or a
specified percentage thereof, in shares of Applicable Stock, that
the conditions to such manner of payment set forth in Section
3.09(c) have been or will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.09(d).
(b) Purchase with Cash. At the option of the Company, the Purchase
Price or Change of Control Purchase Price, as the case may be, of
Securities in respect of which a Purchase Notice pursuant to Section
3.07(1) or Change of Control Purchase Notice pursuant to Section 3.08(c),
as the case may be, has been given, or a specified percentage thereof, may
be paid by the Company with cash equal to the aggregate Purchase Price or
Change of Control Purchase Price, as the case may be, of such Securities.
The Purchase Price or Change of Control Purchase Price, as the case may be,
of Securities in respect of which a Purchase Notice pursuant to Section
3.07(1) or Change of Control Purchase Notice pursuant to Section 3.08(c),
as the case may be, has been given shall, for all other Purchase Dates or
Change of Control Purchase Dates, as the case may be, be paid in cash. The
Company Notice, as provided in Section 3.09(d), shall be sent to Holders
(and to beneficial owners as required by applicable law) not less than 20
Business Days prior to such Purchase Date or Change of Control Purchase
Date, as the case may be (the "Company Notice Date").
(c) Payment by Issuance of Shares of Applicable Stock. At the option
of the Company, the Purchase Price or Change of Control Purchase Price, as
the case may be, of Securities in respect of which a Purchase Notice
pursuant to Section 3.07(1) or Change of Control Purchase Notice pursuant
to Section 3.08(c), as the case may be, has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number
of shares of Applicable Stock equal to the quotient obtained by dividing
(i) the portion of the Purchase Price or Change of Control Purchase Price,
as the case may be, to be paid in shares of Applicable Stock by (ii) 99% of
the Market Price determined by the Company in the Company Notice, subject
to the next succeeding paragraph.
The Company will not issue fractional shares of Applicable Stock in
payment of the Purchase Price or Change of Control Purchase Price, as the
case may be. Instead, the Company will pay cash based on the current market
price for all fractional shares. It is understood that if a Holder elects
to have more than one Security purchased, the number of shares of
Applicable Stock shall be based on the aggregate amount of Securities to be
purchased.
If the Company elects to purchase the Securities by the issuance of
shares of Applicable Stock or in any combination of cash and Applicable
Stock, the Company Notice, as provided in Section 3.09(d), shall be sent to
the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
The Company's right to exercise its election to purchase Securities
through the issuance of shares of Applicable Stock shall be conditioned
upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of an election to purchase all or a specified percentage
of the Securities with shares of Applicable Stock as provided
herein;
(ii) the registration of such shares of Applicable Stock
under the Securities Act and the Exchange Act, in each case, if
required;
(iii) the approval for listing of such shares of Applicable
Stock on a national securities exchange or the approval for
quotation of such shares of Applicable Stock in an inter-dealer
quotation system of any registered United States national
securities association;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an
exemption from such qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel each stating that (A) the terms of the
issuance of the shares of Applicable Stock are in conformity with
this Indenture and (B) the shares of Applicable Stock to be
issued by the Company in payment of the Purchase Price or Change
of Control Purchase Price, as the case may be, in respect of
Securities have been duly authorized and, when issued and
delivered pursuant to the terms of this Indenture in payment of
the Purchase Price or Change of Control Purchase Price, as the
case may be, in respect of the Securities, will be validly
issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights, and, in the
case of such Officers' Certificate, stating that the conditions
above and the condition set forth in the second succeeding
sentence have been satisfied and, in the case of such Opinion of
Counsel, stating that the conditions in clauses (ii) through (iv)
above have been satisfied. Such Officers' Certificate shall also
set forth the number of shares of Applicable Stock to be issued
for each $1,000 principal amount of Securities and the Sale Price
of a share of Applicable Stock on each Trading Day during the
period commencing on the first Trading Day of the period during
which the Market Price is calculated and ending on the third day
prior to the applicable Purchase Date or Change of Control
Purchase Date, as the case may be.
If the foregoing conditions are not satisfied with respect to a
Holder or Holders prior to the close of business on the last day prior
to the Purchase Date or Change of Control Purchase Date, as the case
may be, and the Company has elected to purchase the Securities
pursuant to this Section 3.09 through the issuance of shares of
Applicable Stock, the Company shall pay the entire Purchase Price or
Change of Control Purchase Price, as the case may be, of the
Securities of such Holder or Holders in cash.
Upon determination of the actual number of shares of Applicable
Stock to be issued upon redemption or repurchase of Securities, the
Company shall be required to disseminate a press release through Dow
Xxxxx &Company, Inc. or Bloomberg Business News containing this
information or publish the information on the Company's Web site or
through such other public medium as the Company may use at that time.
(d) Notice of Election. In connection with any purchase of
Securities pursuant to Section 6 of the Securities, the Company shall
give notice to Holders setting forth information specified in this
Section 3.09(d) (the "Company Notice").
In the event the Company has elected to pay the Purchase Price or
Change of Control Purchase Price, as the case may be (or a specified
percentage thereof), with shares of Applicable Stock, the Company
Notice shall:
(1) state that each Holder will receive a number of shares of
Applicable Stock equal to the quotient obtained by dividing (i) the
portion of the Purchase Price or Change of Control Purchase Price, as
the case may be, to be paid in shares of Applicable Stock, by (ii) 99%
of the Market Price (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Market Price of the
shares of Applicable Stock; and
(3) state that because the Market Price of shares of Applicable
Stock will be determined prior to the Purchase Date or Change of
Control Purchase Date, as the case may be, Holders of the Securities
will bear the market risk with respect to the value of the shares of
Applicable Stock to be received from the date such Market Price is
determined to the Purchase Date or Change of Control Purchase Date, as
the case may be.
In any case, each Company Notice shall include a form of Purchase
Notice or Change of Control Purchase Notice, as the case may be, to be
completed by a Holder and shall state:
(i) the Purchase Price or Change of Control Purchase Price, as
the case may be, and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Securities as to which a Purchase Notice or Change of
Control Purchase Notice, as the case may be, has been given may be
converted if they are otherwise convertible only in accordance with
Article 10 hereof and Section 8 of the Securities if the applicable
Purchase Notice or Change of Control Purchase Notice, as the case may
be, has been withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent to
collect payment;
(v) that the Purchase Price or Change of Control Purchase Price,
as the case may be, for any security as to which a Purchase Notice or
Change of Control Purchase Notice, as the case may be, has been given
and not withdrawn will be paid promptly following the later of the
Purchase Date or Change of Control Purchase Date, as the case may be,
and the time of surrender of such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise its put
rights under Section 3.07 or 3.08, as the case may be, and a brief
description of those rights;
(vii) briefly, the conversion rights, if any, with respect to the
Securities;
(viii) the procedures for withdrawing a Purchase Notice or Change
of Control Purchase Notice, as the case may be (including, without
limitation, for a conditional withdrawal pursuant to the terms of
Section 3.07(1)(D), Section 3.08(c)(iv) or Section 3.12);
(ix) that, unless the Company defaults in making payment on
Securities for which a Purchase Notice or Change of Control Purchase
Notice, as the case may be, has been submitted, Interest or Liquidated
Damages, if any, on such Securities will cease to accrue on and after
the Purchase Date or Change of Control Purchase Date, as the case may
be; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company
Notice in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Notice shall be
prepared by the Company.
Section 3.10. Covenants of the Company. All shares of Common
Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued,
fully paid and nonassessable, and shall be free from preemptive rights
and free of any lien or adverse claim.
Section 3.11. Taxes. If a Holder of a purchased Security is paid
in shares of Applicable Stock, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on such issue of Applicable
Stock; provided that the Holder shall pay any such tax which is due
because the Holder requests the Applicable Stock to be issued in a
name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the shares of Applicable Stock
being issued in a name other than the Holder's name until the Paying
Agent receives a sum sufficient to pay any tax which will be due
because the shares of Applicable Stock are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any income
tax withholding required by law or regulations.
Section 3.12. Effect Of Purchase Notice Or Change Of Control
Purchase Notice. (a) Upon receipt by the Paying Agent of the Purchase
Notice or Change of Control Purchase Notice specified in Section
3.07(1) or Section 3.08(c), as applicable, the Holder of the Security
in respect of which such Purchase Notice or Change of Control Purchase
Notice, as the case may be, was given shall (unless such Purchase
Notice or Change of Control Purchase Notice, as the case may be, is
withdrawn as specified in the following two paragraphs) thereafter be
entitled solely to receive the Purchase Price or Change of Control
Purchase Price, as the case may be, with respect to such Security.
Such Purchase Price or Change of Control Purchase Price shall be paid
to such Holder, subject to receipts of funds and/or securities by the
Paying Agent, promptly following the later of (x) the Purchase Date or
the Change of Control Purchase Date, as the case may be, with respect
to such Security (provided the conditions in Section 3.07(1) or
Section 3.08(c), as applicable, have been satisfied) and (y) the time
of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 3.07 or Section 3.08(c), as
applicable. Securities in respect of which a Purchase Notice or Change
of Control Purchase Notice has been given by the Holder thereof may
not be converted pursuant to Article 10 hereof on or after the date of
the delivery of such Purchase Notice or Change of Control Purchase
Notice unless such Purchase Notice or Change of Control Purchase
Notice has first been validly withdrawn as specified in the following
two paragraphs.
(b) A Purchase Notice or Change of Control Purchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice or
Change of Control Purchase Notice, as the case may be, at any time
prior to the close of business on the Business Day immediately
preceding the Purchase Date or Change of Control Purchase Date, as the
case may be, specifying:
(1) the certificate number, if any, of the Security in
respect of which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to
which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which
remains subject to the original Purchase Notice or Change of
Control Purchase Notice, as the case may be, and which has been
or will be delivered for purchase by the Company.
(c) A written notice of withdrawal of a Purchase Notice may
be in the form set forth in Section 3.12(b) or may be in the form
of (i) a conditional withdrawal contained in a Purchase Notice
pursuant to the terms of Section 3.07(1)(D) or (ii) a conditional
withdrawal containing the information set forth in Section
3.07(1)(D) and Section 3.12(b) and contained in a written notice
of withdrawal delivered to the Paying Agent as set forth in
Section 3.12(b).
(d) A written notice of withdrawal of a Change of Control
Purchase Notice may be in the form set forth in Section 3.12(b)
or may be in the form of (i) a conditional withdrawal contained
in a Purchase Notice pursuant to the terms of Section 3.08(c)(iv)
or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(c)(iv) and Section 3.12(b) and contained in
a written notice of withdrawal delivered to the Paying Agent as
set forth in Section 3.12(b).
(e) There shall be no purchase of any Securities pursuant to
Section 3.07 or 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 or Change of Control
Purchase Notice, as the case may be) and is continuing an Event
of Default (other than a default in the payment of the Purchase
Price or Change of Control Purchase Price, as the case may be,
with respect to such Securities). The Paying Agent will promptly
return to the respective Holders thereof any Securities (x) with
respect to which a Purchase Notice or Change of Control Purchase
Notice, as the case may be, has been withdrawn in compliance with
this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the
Purchase Price or Change of Control Purchase Price, as the case
may be, with respect to such Securities) in which case, upon such
return, the Purchase Notice or Change of Control Purchase Notice
with respect thereto shall be deemed to have been withdrawn.
Section 3.13. Deposit Of Purchase Price Or Change Of Control
Purchase Price. Prior to 10:00 a.m. (local time in the City of New
York) on the Business Day following the Purchase Date or the Change of
Control Purchase Date, as the case may be, the Company shall deposit
with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 2.04)
an amount of cash (in immediately available funds if deposited on such
Business Day) or Applicable Stock, if permitted hereunder, sufficient
to pay the aggregate Purchase Price or Change of Control Purchase
Price, as the case may be, of all the Securities or portions thereof
which are to be purchased as of the Purchase Date or Change of Control
Purchase Date, as the case may be.
As soon as practicable after the Purchase Date or Change of
Control Purchase Date, as the case may be, the Company shall deliver
to each Holder entitled to receive shares of Applicable Stock through
the Paying Agent, a certificate for the number of full shares of
Applicable Stock issuable in payment of the Purchase Price or Change
of Control Purchase Price, as the case may be, and cash in lieu of any
fractional interests. The person in whose name the certificate for the
shares of Applicable Stock is registered shall be treated as a holder
of record of Applicable Stock on the Business Day following the
Purchase Date or Change of Control Purchase Date, as the case may be.
Subject to Section 3.09(c), no payment or adjustment will be made for
dividends on the shares of Applicable Stock the record date for which
occurred on or prior to the Purchase Date or Change of Control
Purchase Date, as the case may be.
Section 3.14. Securities Purchased In Part. Any Certificated
Security which is to be purchased only in part shall be surrendered at
the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Xxxxxx's attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange
for, the portion of the principal amount of the Security so
surrendered which is not purchased.
Section 3.15. Covenant To Comply With Securities Laws Upon
Purchase Of Securities. When complying with the provisions of Section
3.07 or 3.08 hereof (provided that such offer or purchase constitutes
an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), and subject to
any exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision)
under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to
permit the rights and obligations under Sections 3.07 and 3.08 to be
exercised in the time and in the manner specified in Sections 3.07 and
3.08.
Section 3.16. Repayment To The Company. The Trustee and the
Paying Agent shall return to the Company any cash or shares of Common
Stock that remain unclaimed as provided in Section 12 of the
Securities, together with interest or dividends, if any, thereon
(subject to the provisions of Section 7.01(f)), held by them for the
payment of the Purchase Price or Change of Control Purchase Price, as
the case may be; provided, however, that to the extent that the
aggregate amount of cash or shares of Common Stock deposited by the
Company pursuant to Section 3.13 exceeds the aggregate Purchase Price
or Change of Control Purchase Price, as the case may be, of the
Securities or portions thereof which the Company is obligated to
purchase as of the Purchase Date or Change of Control Purchase Date,
as the case may be, then, unless otherwise agreed in writing with the
Company, promptly after the Business Day following the Purchase Date
or Change of Control Purchase Date, as the case may be, the Trustee
shall return any such excess to the Company together with interest or
dividends, if any, thereon (subject to the provisions of Section
7.01(f)).
Article 4
COVENANTS
Section 4.01. Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the
manner provided in the Securities or pursuant to this Indenture. Any
amounts of cash in immediately available funds or shares of Applicable
Stock to be given to the Trustee or Paying Agent, shall be deposited
with the Trustee or Paying Agent by 10:00 a.m., New York City time, by
the Company. The principal amount of, and Interest and Liquidated
Damages, if any, on the Securities, and the Redemption Price, Purchase
Price and the Change of Control Purchase Price shall be considered
paid on the applicable date due if on such date (or, in the case of a
Purchase Price or Change of Control Purchase Price, on the Business
Day following the applicable Purchase Date or Change of Control
Purchase Date, as the case may be) the Trustee or the Paying Agent
holds, in accordance with this Indenture, cash or securities, if
permitted hereunder, sufficient to pay all such amounts then due.
Section 4.02. SEC And Other Reports. The Company shall file with
the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies
of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it
shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be
filed with the SEC had the Company continued to have been subject to
such reporting requirements. In such event, such reports shall be
provided at the times the Company would have been required to provide
reports had it continued to have been subject to such reporting
requirements. The Company also shall comply with the other provisions
of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
conclusively on Officers' Certificates).
Section 4.03. Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending in December, 2003)
an Officers' Certificate, stating whether or not to the knowledge of
the signers thereof, the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 4.04. Further Instruments And Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purposes of this Indenture.
Section 4.05. Maintenance Of Office Or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office
or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange,
purchase, redemption or conversion and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may
be served. The office of Xxxxx Fargo Corporate Trust, located at c/o
Depository Trust Company, 1st Floor, TADS Dept., 00 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, shall initially be such office or agency for all of
the aforesaid purposes. The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of
any such office or agency (other than a change in the location of the
office of the Trustee). If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes.
Section 4.06. Delivery Of Certain Information. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of a Holder or any beneficial owner of Securities or
holder or beneficial owner of shares of Common Stock issued upon
conversion thereof, or in accordance with Section 3.08(c), the Company
will promptly furnish or cause to be furnished Rule 144A Information
(as defined below) to such Holder or any beneficial owner of
Securities or holder or beneficial owner of shares of Common Stock, or
to a prospective purchaser of any such security designated by any such
holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the
Securities Act in connection with the resale of any such security.
"Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person
is a beneficial owner shall be determined by the Company to the
Company's reasonable satisfaction.
Section 4.07. Liquidated Damages Notice. In the event that the
Company is required to pay Liquidated Damages to holders of Securities
pursuant to the Registration Rights Agreement, the Company will
provide written notice ("Liquidated Damages Notice") to the Trustee of
its obligation to pay Liquidated Damages no later than fifteen days
prior to the proposed payment date for the Liquidated Damages, and the
Liquidated Damages Notice shall set forth the amount of Liquidated
Damages to be paid by the Company on such payment date. The Trustee
shall not at any time be under any duty to any holder of Securities to
determine the Liquidated Damages, or with respect to the nature,
extent or calculation of the amount of Liquidated Damages when made,
or with respect to the method employed in such calculation of the
Liquidated Damages.
Article 5
SUCCESSOR PERSON
Section 5.01. When Company May Merge Or Transfer Assets. The
Company shall not consolidate with or merge with or into any other
Person or convey, transfer, sell, lease or otherwise dispose of its
properties and assets substantially as an entirety to any person,
unless:
(a) either (1) the Company shall be the continuing
corporation or (2) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety
(i) shall be a corporation organized and validly existing under
the laws of the United States or any State thereof or the
District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all of
the obligations of the Company under the Securities and this
Indenture;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this
Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets
were owned by the Company, would constitute substantially an entirety of
the properties and assets of the Company, shall be deemed to be the
transfer of substantially an entirety of the properties and assets of the
Company.
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company herein;
and thereafter, except in the case of a lease and obligations the Company
may have under a supplemental indenture, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities.
Subject to Section 9.06, the Company, the Trustee and the successor Person
shall enter into a supplemental indenture to evidence the succession and
substitution of such successor Person and such discharge and release of the
Company.
Article 6
DEFAULTS AND REMEDIES
Section 6.01. Events Of Default. So long as any Securities are
outstanding, each of the following shall be an "Event of Default":
(1) the Company fails to convert any portion of the principal amount
of any Security following the exercise by the Holder of the right to
convert such Security into Common Stock pursuant to and in accordance with
Article 10 hereof;
(2) the Company defaults in its obligation to repurchase any Security,
or any portion thereof, upon the exercise by the Holder of such Holder's
right to require the Company to purchase such Securities pursuant to and in
accordance with Section 3.07 or 3.08 hereof;
(3) the Company defaults in its obligation to redeem any Security, or
any portion thereof, called for redemption by the Company pursuant to and
in accordance with Section 3.01 hereof.
(4) the Company defaults in the payment of the principal amount of any
Security when the same becomes due and payable at its Stated Maturity or
the payment of any portion of the principal amount of any Security, when
the same becomes due and payable;
(5) the Company defaults in the payment of any Interest or Liquidated
Damages when due and payable, and continuance of such default for a period
of 30 days;
(6) the Company fails to comply with any of its agreements or
covenants in the Securities or this Indenture (other than those referred to
in clause (1) through clause (5) above) and such failure continues for 60
days after receipt by the Company of a Notice of Default;
(7) a failure to pay when due at maturity or a default, event of
default or other similar condition or event (however described) that
results in the acceleration of maturity of any indebtedness for borrowed
money of the Company or any Designated Subsidiary (including, without
limitation, the Credit Agreement) in an aggregate amount of $40 million or
more, unless the acceleration is rescinded, stayed or annulled within 30
days after written notice of default is given to the Company by the Trustee
or Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding;
(8) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or any of its Subsidiaries that is a
Designated Subsidiary or any group of two or more Subsidiaries that, taken
as a whole, would constitute a Designated Subsidiary, a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Subsidiaries that is a Designated Subsidiary or
any group of two or more Subsidiaries that, taken as a whole, would
constitute a Designated Subsidiary, under any applicable law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; and
(9) the commencement by the Company or any of its Subsidiaries that is
a Designated Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Designated Subsidiary, of a voluntary
case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any of its Subsidiaries that is a Designated Subsidiary or any group of two
or more Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, to the entry of a decree or order for relief in respect of the
Company or any of its Subsidiaries that is a Designated Subsidiary or any
group of two or more Subsidiaries that, taken as a whole, would constitute
a Designated Subsidiary, in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against the Company, or the filing by the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, of a petition or answer or consent seeking reorganization or
relief under any applicable law, or the consent by the Company to the
filing of such petition or to the appointment of or the taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of its
property, or the making by the Company or any of its Subsidiaries that is a
Designated Subsidiary or any group of two or more Subsidiaries that, taken
as a whole, would constitute a Designated Subsidiary, of an assignment for
the benefit of creditors, or the admission by the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, expressly in furtherance of any such action.
For the avoidance of doubt, clause (6) above shall not constitute an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25% in aggregate principal amount of the Securities at the time
outstanding notify the Company and the Trustee, of such default and the
Company does not cure such default (and such default is not waived) within
the time specified in clause (6) above after actual receipt of such notice.
Any such notice must specify the default, demand that it be remedied and
state that such notice is a "Notice of Default."
The Trustee shall, within 90 days of the occurrence of an Event of
Default, give to the Holders of the Securities notice of all uncured Events
of Defaults known to it and written notice of any event which with the
giving of notice or the lapse of time, or both, would become an Event of
Default, its status and what action the Company is taking or proposes to
take with respect thereto; provided, however, the Trustee shall be
protected in withholding such notice if it, in good faith, determines that
the withholding of such notice is in the best interest of such Holders,
except in the case of an Event of Default specified in clauses (1) through
(5) of this Section 6.01.
Section 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(8) or 6.01(9)) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities at the time
outstanding by notice to the Company and the Trustee, may declare the
principal amount of the Securities and any accrued and unpaid Interest and
accrued and unpaid Liquidated Damages, if any, on all the Securities to be
immediately due and payable. Upon such a declaration, such accelerated
amount shall be due and payable immediately. If an Event of Default
specified in Section 6.01(8) or 6.01(9) occurs and is continuing, the
principal amount of the Securities and any accrued and unpaid Interest and
accrued and unpaid Liquidated Damages, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Securityholders. The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
the principal amount of the Securities and any accrued and unpaid Interest,
and accrued and unpaid Liquidated Damages, if any, that have become due
solely as a result of acceleration and if all amounts due to the Trustee
under Section 7.07 have been paid. No such rescission shall affect any
subsequent Event of Default or impair any right consequent thereto.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the
payment of the principal amount of the Securities and any accrued and
unpaid Interest and accrued and unpaid Liquidated Damages, if any, on the
Securities or to enforce the performance of any provision of the Securities
or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in,
the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
Section 6.04. Waiver Of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by
notice to the Trustee (and without notice to any other Securityholder), may
waive an existing or past Event of Default and its consequences except (1)
an Event of Default described in Section 6.01(1) or 6.01(2), (2) an Event
of Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected or (3) an Event
of Default which constitutes a failure to convert any Security in
accordance with the terms of Article 10. When an Event of Default is
waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Event of Default or impair any consequent right. This
Section 6.04 shall be in lieu of Section 316(a)1(B) of the TIA and such
Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.05. Control By Majority. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability unless
the Trustee is offered indemnity satisfactory to it. This Section 6.05
shall be in lieu of Section 316(a)1(A) of the TIA and such Section
316(a)1(A) is hereby expressly excluded from this Indenture, as permitted
by the TIA.
Section 6.06. Limitation On Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any
other Securityholder.
Section 6.07. Rights Of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount of the Securities and any accrued and
unpaid Interest and accrued and unpaid Liquidated Damages, if any, in
respect of the Securities held by such Holder, on or after the respective
due dates expressed in the Securities or any Redemption Date, and to
convert the Securities in accordance with Article 10, or to bring suit for
the enforcement of any such payment on or after such respective dates or
the right to convert, shall not be impaired or affected adversely without
the consent of such Holder.
Section 6.08. Collection Suit By Trustee. If an Event of Default
described in Section 6.01(2), 6.01(3) or 6.01(4) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount owing with respect
to the Securities and the amounts provided for in Section 7.07.
Section 6.09. Trustee May File Proofs Of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal amount of the Securities
and any accrued and unpaid Interest, and accrued and unpaid Liquidated
Damages, if any, in respect of the Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the
payment of any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole principal amount of the
Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any
other amounts due the Trustee under Section 7.07) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the principal amount of the Securities and any accrued and
unpaid Interest and accrued and unpaid Liquidated Damages, if any, as the
case may be, ratably, without preference or priority of any kind, according
to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company
a notice that states the record date, the payment date and the amount to be
paid.
Section 6.11. Undertaking For Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the
Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate principal amount of the Securities
at the time outstanding. This Section 6.11 shall be in lieu of Section
315(e) of the TIA and such Section 315(e) is hereby expressly excluded from
this Indenture, as permitted by the TIA.
Section 6.12. Waiver Of Stay, Extension Or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
principal amount of the Securities and any accrued and unpaid Interest and
accrued and unpaid Liquidated Damages, if any, on Securities, as
contemplated herein, or which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Article 7
TRUSTEE
Section 7.01. Duties Of Trustee. The duties and responsibilities of
the Trustee shall be as provided by the TIA and as set forth herein.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or
other facts stated therein. This Section 7.01(b) shall be in
lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted
by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this Section (c) does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture,
as permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee (acting in any capacity hereunder) shall be under no liability for
interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.
Section 7.02. Rights Of Trustee. Subject to its duties and
responsibilities under the TIA.
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized
or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
Section 7.03. Individual Rights Of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or
application of the proceeds from the Securities, it shall not be
responsible for any statement in the registration statement for the
Securities under the Securities Act or in any offering document for the
Securities, the Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
Section 7.05. Notice Of Defaults. If an Event of Default occurs and if
it is known to the Trustee, the Trustee shall give to each Securityholder
notice of the Event of Default within 90 days after it occurs or, if later,
within 15 days after it is known to the Trustee, unless such Event of
Default shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of an Event of
Default described in Section 6.01(1) and 6.01(2), the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interest of the
Securityholders. The preceding sentence shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded
from this Indenture, as permitted by the TIA. The Trustee shall not be
deemed to have knowledge of a Event of Default unless a Responsible Officer
of the Trustee has received written notice of such Event of Default, which
notice specifically references this Indenture and the Securities.
Section 7.06. Reports By Trustee To Holders. Within 75 days after each
December 31 beginning with the December 31 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report
dated as of such December 31 that complies with TIA Section 313(a), if
required by such Section 313(a). The Trustee also shall comply with TIA
Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which
the Securities are listed. The Company agrees to notify the Trustee
promptly whenever the Securities become listed on any securities exchange
and of any delisting thereof.
Section 7.07. Compensation And Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
(to the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses, and
taxes (other than taxes based upon, measured by or determined by the income
of the Trustee)) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay the
principal amount of, or the Redemption Price, Purchase Price, Change of
Control Purchase Price, Interest, or Liquidated Damages, if any, as the
case may be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of an
Event of Default specified in Section 6.01(8) or 6.01(9), the expenses,
including the reasonable charges and expenses of its counsel, are intended
to constitute expenses of administration under any bankruptcy law.
Section 7.08. Replacement Of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant
to this Section 7.08. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may remove the Trustee by
so notifying the Trustee and the Company. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form
and substance to the retiring Trustee and the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Section 7.09. Successor Trustee By Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of TIA Section 310(b).
Section 7.11. Preferential Collection Of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
Article 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge Of Liability On Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced or repaid pursuant to Section 2.07) for cancellation or
(ii) all outstanding Securities have become due and payable and the Company
deposits with the Trustee cash sufficient to pay all amounts due and owing
on all outstanding Securities (other than Securities replaced pursuant to
Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to
Section 7.07, cease to be of further effect. The Trustee shall join in the
execution of a document prepared by the Company acknowledging satisfaction
and discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and Opinion of Counsel and at the cost and expense of
the Company.
Section 8.02. Repayment To The Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to
the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that
period commencing after the return thereof.
Article 9
AMENDMENTS
Section 9.01. Without Consent Of Holders. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder to:
(a) add to the covenants of the Company for the benefit of the
Holders of Securities;
(b) surrender any right or power herein conferred upon the
Company;
(c) provide for conversion rights of Holders of Securities if any
reclassification or change of the Common Stock or any consolidation,
merger or sale of all or substantially all of the Company's assets
occurs;
(d) provide for the assumption of the Company's obligations to
the Holders of Securities in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 5 hereof;
(e) increase the Conversion Rate; provided, however, that such
increase in the Conversion Rate shall not adversely affect the
interests of the Holders of Securities (after taking into account tax
and other consequences of such increase);
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) make any changes or modifications necessary in connection
with the registration of the Securities under the Securities Act as
contemplated in the Registration Rights Agreement; provided, however,
that such action pursuant to this clause (g) does not, in the good
faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution) and the Trustee, adversely affect the interests
of the Holders of Securities in any material respect;
(h) cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or
which is otherwise defective, or to make any other provisions with
respect to matters or questions arising under this Indenture which the
Company may deem necessary or desirable and which shall not be
inconsistent with the provisions of this Indenture; provided, however,
that such action pursuant to this clause (h) does not, in the good
faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution) and the Trustee, adversely affect the interests
of the Holders of Securities in any material respect;
(i) add additional dates on which the Securities shall be
purchased by the Company pursuant to Section 6 of the Securities at
the option of the Holder; and
(j) add or modify any other provisions herein with respect to
matters or questions arising hereunder which the Company and the
Trustee may deem necessary or desirable and which will not adversely
affect the interests of the Holders of Securities in any material
respect.
Section 9.02. With Consent Of Holders. Except as provided below
in this Section 9.02, this Indenture or the Securities may be amended,
modified or supplemented, and noncompliance in any particular instance
with any provision of this Indenture or the Securities may be waived,
in each case with the written consent of the Holders of at least a
majority of the principal amount of the Securities at the time
outstanding.
Without the written consent or the affirmative vote of each
Holder of Securities affected thereby, an amendment, supplement or
waiver under this Section 9.02 may not:
(a) change the maturity of any Security, or the payment date of
any installment of Interest or Liquidated Damages payable on any
Security;
(b) reduce the principal amount of, or the Interest or Liquidated
Damages, payable on, or the Redemption Price, Purchase Price or Change
of Control Purchase Price of, any Security;
(c) impair or adversely affect the conversion rights of any
Holder of Securities;
(d) change the currency of any amount owed or owing under the
Security or any interest thereon from U.S. Dollars;
(e) alter or otherwise modify the rate of Interest and Liquidated
Damages on any Security, or the manner of calculation thereof, or
extend time for payment of any amounts due and payable to the Holders
of the Securities;
(f) impair the right of any Holder to institute suit for the
enforcement of any payment or with respect to, or conversion of, any
Security;
(g) adversely affect the purchase right of the Holders of the
Securities as provided in Article 3 or the right of the Holders of the
Securities to convert any Security as provided in Article 10, except
as otherwise permitted pursuant to Article 5 or Section 10.04 hereof;
(h) modify the provisions of Article 3 in a manner adverse to the
Holders of the Securities;
(i) modify any of the provisions of this Section, or reduce the
percentage of the aggregate principal amount of outstanding Securities
required to amend, modify or supplement the Indenture or the Security
or waive an Event of Default, except to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby;
or
(j) reduce the percentage of the aggregate principal amount of
the outstanding Securities the consent of whose Holders is required
for any such supplemental indenture entered into in accordance with
this Section 9.02 or the consent of whose Holders is required for any
waiver provided for in this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the
amendment.
Nothing in this Section 9.02 shall impair the ability of the Company
and the Trustee to amend this Indenture or the Securities without the
consent of any Securityholder to provide for the assumption of the
Company's obligations to the Holders of Securities in the case of a merger,
consolidation, conveyance, transfer or lease pursuant to Article 5 hereof.
Section 9.03. Compliance With Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
Section 9.04. Revocation And Effect Of Consents, Waivers And Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent
by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on
the Security. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date
the amendment, waiver or action becomes effective. After an amendment,
waiver or action becomes effective, it shall bind every Securityholder.
Section 9.05. Notation On Or Exchange Of Securities. Securities
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for outstanding Securities.
Section 9.06. Trustee To Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9
if the amendment contained therein does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee
may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the
provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
Section 9.07. Effect Of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Article 10
CONVERSIONS
Section 10.01. Conversion Privilege. (a) Subject to and upon
compliance with the provisions of this Article 10, a Holder of a
Security shall have the right, at such Holder's option, to convert all
or any portion (if the portion to be converted is $1,000 principal
amount or an integral multiple thereof) of such Security into shares
of Common Stock at the Conversion Rate in effect on the date of
conversion:
(1) during any fiscal quarter of the Company (a "Fiscal
Quarter"), if as of the last day of the immediately preceding Fiscal
Quarter, the Sale Price of the Common Stock for at least 20 Trading
Days in the 30 consecutive Trading Day period ending on the last day
of such preceding Fiscal Quarter was more than 120% of the Conversion
Price in effect on such 30th Trading Day;
(2) at any time prior to the close of business on the Business
Day preceding the date fixed for redemption, if such Security has been
called for redemption pursuant to Article 3 hereof;
(3) at any time following the occurrence and during the
continuance of an Event of Default; or
(4) as provided in Section (b) of this Section 10.01.
The Company or a designated agent shall determine on a daily basis
whether the Securities shall be convertible as a result of the occurrence
of an event specified in clause (1) above and, if the Securities shall be
so convertible, the Company shall promptly deliver to the Trustee and
Conversion Agent written notice thereof. Whenever the Securities shall
become convertible pursuant to Section 10.01, the Company or, at the
Company's request, the Trustee in the name and at the expense of the
Company, shall promptly notify the Holders of the event triggering such
convertibility in the manner provided in Section 11.02, and the Company
shall also promptly publicly announce such information through Dow Xxxxx
& Company, Inc. or Bloomberg Business News and publish it on the
Company's Web site. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice.
(b) In addition, in the event that:
(1) the Company makes a distribution described in Section
10.03(d) or (e), the Fair Market Value (as determined by the Board of
Directors) of such distribution per share of Common Stock exceeds 15%
of the Sale Price of a share of Common Stock on the Business Day
immediately preceding the date of declaration of such distribution,
then, in each case, the Securities may be surrendered for conversion
at any time on and after the date that the Company gives notice to the
Holders of such right, which shall be not less than 20 days prior to
the Ex-Dividend Time for such distribution, until the earlier of the
close of business on the Business Day immediately preceding the
Ex-Dividend Time or the date the Company announces that such
distribution will not take place.
(2) the Company consolidates with or merges into another Person,
or transfers, sells, leases or otherwise disposes of all or
substantially all of its assets, or is a party to a binding share
exchange pursuant to which the shares of Common Stock would be
converted into cash, securities or other property as set forth in
Section 10.04 hereof, then the Securities may be surrendered for
conversion at any time from and after the date which is 15 days prior
to the date announced by the Company as the anticipated effective time
of such transaction until 15 days after the actual date of such
transaction, and, at such effective time, the right to convert the
Securities into shares of Common Stock shall be changed, as set forth
in Section 10.04, into a right to convert into the kind and amount of
such cash, securities or other property which the Holder of such
Securities would have received if such Holder had converted the
Securities immediately prior to such transaction.
"Ex-Dividend Time" means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the
shares of Common Stock trade regular way on the principal securities
market on which the shares of Common Stock are then traded without the
right to receive such issuance or distribution.
Section 10.02. Conversion Procedure; Conversion Price; Fractional
Shares.
(a) Each Security shall be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock. The rate at which
shares of Common Stock shall be delivered upon conversion (the
"Conversion Rate") shall be initially 54.6747 shares of Common Stock
for each $1,000 principal amount of Securities. The Conversion Rate
shall be adjusted in certain instances as provided in Section 10.03
hereof, but shall not be adjusted for any accrued and unpaid Interest,
or Liquidated Damages, if any. Upon conversion, no payment shall be
made by the Company with respect to any accrued and unpaid Interest or
Liquidated Damages if any. Instead, such amount shall be deemed paid
by the shares of Common Stock delivered upon conversion of any
Security. In addition, no payment or adjustment shall be made in
respect of dividends on the Common Stock on a converted Security. The
Company shall not issue any fraction of a share of Common Stock in
connection with any conversion of Securities, but instead shall,
subject to Section 10.03(h) hereof, make a cash payment (calculated to
the nearest cent) equal to such fraction multiplied by the Sale Price
of the Common Stock on the last Trading Day prior to the date of
conversion. Notwithstanding the foregoing, a Security in respect of
which a Holder has delivered a Purchase Notice or Change of Control
Purchase Notice exercising such Holder's option to require the Company
to repurchase such Security may be converted only if such notice of
exercise is withdrawn in accordance with the Section 3.12 hereof.
(b) Before any Holder of a Security shall be entitled to convert
the same into Common Stock, such Holder shall, in the case of
Securities issued in global form, comply with the procedures of the
Depositary in effect at that time, and in the case of Certificated
Securities, surrender such Securities, duly endorsed to the Company or
in blank, at the office of the Conversion Agent, and shall give
written notice to the Company in form on reverse of such Certificated
Security (a "Notice of Conversion") at said office or place that such
Holder elects to convert the same and shall state in writing therein
the principal amount of Securities to be converted and the name or
names (with addresses) in which such Holder wishes the certificate or
certificates for Common Stock to be issued.
Before any such conversion, a Holder also shall pay all taxes or
duties, if any, as provided in Section 10.05.
If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Common Stock
which shall be deliverable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted thereby) so
surrendered. Subject to the next succeeding sentence, the Company
will, as soon as practicable thereafter, issue and deliver at said
office or place to such Holder of a Security, or to such Holder's
nominee or nominees, certificates for the number of full shares of
Common Stock to which such Holder shall be entitled as aforesaid,
together, subject to the last sentence of Section 10.02(a) above, with
cash in lieu of any fraction of a share to which such Holder would
otherwise be entitled. The Company shall not be required to deliver
certificates for shares of Common Stock while the stock transfer books
for such stock or the security register are duly closed for any
purpose, but certificates for shares of Common Stock shall be issued
and delivered as soon as practicable after the opening of such books
or security register.
(c) A Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Securities for
conversion, accompanied by the Notice of Conversion, as provided
above, and the person or persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the
record Holder or Holders of such Common Stock as of the close of
business on such date.
(d) In case any Security shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of
the Security so surrendered, without charge to such Holder (subject to
the provisions of Section 10.05 hereof), a new Security or Securities
in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Securities.
(e) By delivering to the Holder the number of shares of Common
Stock issuable upon conversion, together with cash in lieu of any
fractional shares as provided in Section 10.02(b) hereof, the Company
will satisfy its obligation with respect to the Security, and upon
such delivery accrued and unpaid Interest, and Liquidated Damages, if
any, with respect to such Security will be deemed to be paid in full
rather than canceled, extinguished or forfeited.
(f) If a Securityholder delivers a Notice of Conversion after the
Interest Record Date for a payment of Interest but prior to the
corresponding Interest Payment Date, such Securityholder must pay to
the Company, at the time such Securityholder surrenders Securities for
Conversion, an amount equal to the Interest and Liquidated Damages,
that has accrued and will be paid on the related Interest Payment
Date. This Section 10.02(f) shall not apply to a Securityholder that
converts Securities that are called by the Company for redemption
pursuant to Section 3.01 after an Interest Record Date for a payment
of Interest but prior to the corresponding Interest Payment Date.
SECTION 10.03. Adjustment of Conversion Rate. The Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares
of Common Stock, the Conversion Rate shall be increased so that the
same shall equal the rate determined by dividing the Conversion Rate
in effect at the opening of business on the date following the date
fixed for the determination of stockholders entitled to receive such
dividend or other distribution by a fraction,
(i) the numerator of which shall be the number of shares of
the Common Stock outstanding at the close of business on the date
fixed for such determination; and
(ii) the denominator of which shall be the sum of such
number of shares and the total number of shares constituting such
dividend or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purpose of this paragraph (a), the number of shares of Common
Stock at any time outstanding shall not include shares held in the
treasury of the Company. The Company will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of the
Company. If any dividend or distribution of the type described in this
Section 10.03(a) is declared but not so paid or made, the Conversion
Rate shall again be adjusted to the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights (excluding any Rights
pursuant to the Rights Agreement) or warrants to all holders of its
outstanding shares of Common Stock entitling them (for a period
expiring within forty-five (45) days after the date fixed for
determination of stockholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price (as defined below)
on the date fixed for determination of stockholders entitled to
receive such rights or warrants, the Conversion Rate shall be adjusted
so that the same shall equal the rate determined by dividing the
Conversion Rate in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or
warrants by a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered would
purchase at such Current Market Price, and
(ii) the denominator of which shall be the number of shares
of Common Stock outstanding on the date fixed for determination
of stockholders entitled to receive such rights or warrants plus
the total number of additional shares of Common Stock offered for
subscription or purchase.
Such adjustment shall be successively made whenever any such
rights or warrants are issued, and shall become effective immediately
after the opening of business on the day following the date fixed for
determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered
after the expiration of such rights or warrants, the Conversion Rate
shall be readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if
such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such Current Market
Price, and in determining the aggregate offering price of such shares
of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount
payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of
Directors.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately increased, and conversely, in case outstanding
shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening
of business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
Capital Stock of the Company or evidences of its indebtedness or
assets (including securities, but excluding any rights or warrants
referred to in Section 10.03(b) and excluding any dividend or
distribution (x) paid exclusively in cash or (y) referred to in
Section 10.03(a)) (any of the foregoing hereinafter in this Section
10.03(d) called the "Distributed Assets"), then, in each such case
(unless the Company elects to reserve such Distributed Assets for
distribution to the Holders upon the conversion of the Securities so
that any such holder converting Securities will receive upon such
conversion, in addition to the shares of Common Stock to which such
holder is entitled, the amount and kind of such Distributed Assets
which such holder would have received if such holder had converted its
Securities into Common Stock immediately prior to the Record Date (as
defined in Section 10.03(g)(iii)) for such distribution of the
Distributed Assets), the Conversion Rate shall be adjusted so that the
same shall be equal to the rate determined by dividing the Conversion
Rate in effect on the Record Date with respect to such distribution by
a fraction,
(i) the numerator of which shall be the Current Market Price
per share of the Common Stock on such Record Date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution
of the Board of Directors) on the Record Date of the portion of
the Distributed Assets so distributed applicable to one share of
Common Stock; and
(ii) the denominator of which shall be the Current Market
Price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening
of business on the day following such Record Date; provided, however,
that in the event (1) the then fair market value (as so determined) of
the portion of the Distributed Assets so distributed applicable to one
share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the Record Date or (2) the Current Market
Price of Common Stock on the Record Date exceeds the then fair market
value (as so determined) of the portion of the Distributed Assets so
distributed applicable to one share of Common Stock by less than
$1.00, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder shall have the right to receive upon
conversion the amount of Distributed Assets such holder would have
received had such holder converted each Security on the Record Date.
In the event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had
not been declared. If the Board of Directors determines the fair
market value of any distribution for purposes of this Section 10.03(d)
by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market
over the same period used in computing the Current Market Price of the
Common Stock.
Rights or warrants distributed by the Company to all holders of
Common Stock (including any Rights pursuant to the Rights Agreement)
entitling the holders thereof to subscribe for or purchase shares of
the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed to be
transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances
of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 10.03 (and no adjustment to the Conversion
Rate under this Section 10.03 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to the Conversion Rate shall be made under this
Section 10.03(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such
rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the
date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the
existing rights or warrants without exercise by any of the holders
thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this
Section 10.03 was made, (1) in the case of any such rights or warrants
that shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Rate shall be readjusted upon such
final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price
received by a holder or holders of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if
such rights and warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to
this Section 10.03(d) in respect of rights or warrants distributed or
deemed distributed on any Trigger Event to the extent that such rights
or warrants are actually distributed, or reserved by the Company for
distribution to holders of Securities upon conversion by such holders
of Securities to Common Stock.
For purposes of this Section 10.03(d) and Sections 10.03(a) and
(b), any dividend or distribution to which this Section 10.03(d) is
applicable that also includes shares of Common Stock, or rights or
warrants to subscribe for or purchase shares of Common Stock (or
both), shall be deemed instead to be (1) a dividend or distribution of
the evidences of indebtedness, assets or shares of capital stock other
than such shares of Common Stock or rights or warrants (and any
Conversion Rate adjustment required by this Section 10.03(d) with
respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares
of Common Stock or such rights or warrants (and any further Conversion
Rate adjustment required by Sections 10.03(a) and (b) with respect to
such dividend or distribution shall then be made), except (A) the
Record Date of such dividend or distribution shall be substituted as
"the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution", "the date fixed for the
determination of stockholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the
meaning of Sections 10.03(a) and (b), and (B) any shares of Common
Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such
determination" within the meaning of Section 10.03(a).
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (an "Extraordinary
Cash Dividend") (excluding any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary), which Extraordinary Cash Dividend,
together with any cash and the fair market value of any other
consideration payable in respect of any tender or exchange offer for
shares of Common Stock by the Company or one of the Subsidiaries of
the Company made within the preceding 12 months for which no
adjustment has been made in the Conversion Rate, shall exceed 10% of
the arithmetic average of the Sale Price of the Common Stock during
the ten Trading Days immediately prior to the date of declaration of
the Extraordinary Cash Dividend, then, in such case, the Conversion
Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate in effect immediately prior
to the close of business on such Record Date by a fraction,
(i) the numerator of which shall be the Current Market Price
of the Common Stock on the Record Date less the amount of cash so
distributed (and not excluded as provided above) applicable to
one share of Common Stock, and
(ii) the denominator of which shall be such Current Market
Price of the Common Stock,
such adjustment to be effective immediately prior to the opening of
business on the day following the Record Date; provided, however, that
in the event the portion of the cash so distributed applicable to one
share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall
have the right to receive upon conversion the amount of cash such
holder would have received had such holder converted each Security on
the Record Date. In the event that such dividend or distribution is
not so paid or made, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender offer or exchange offer (excluding, for purposes
of this Section 10.03(f), cash consideration payable in respect of open
market repurchases executed pursuant to the open market repurchase program
announced by the Company on January 7, 2003 or other similar plan or
program announced by the Company) made by the Company or any of its
Subsidiaries for all or any portion of the shares of Common Stock shall
expire and such tender offer or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the tender offer or
exchange offer) of shares tendered) of an aggregate consideration having a
Fair Market Value (as determined in good faith by the Board of Directors)
that combined together with:
(i) the aggregate amount of the cash, plus the fair market value,
as of the expiration of such tender offer or exchange offer, of any
other consideration payable in respect of any other tender offers or
exchange offers, by the Company or any of its Subsidiaries for all or
any portion of the shares of Common Stock expiring within the 12
months preceding the expiration of such tender offer or exchange offer
and in respect of which no adjustment pursuant to this Section
10.03(f) has been made; and
(ii) the aggregate amount of any distributions to all holders of
shares of Common Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to Section 10.03(e) has been made (excluding
cash consideration payable in respect of any open market repurchase
program referred to in this Section 10.03(f));
exceeds 10% of the product of the Sale Price of the Common Stock as of the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended), times the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the Conversion
Price shall be adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
close of business on the date of the Expiration Time by a fraction:
(i) the numerator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the last reported Sale Price of the
Common Stock (determined as provided in the definition of Current
Market Price) on the Trading Day next succeeding the Expiration Time,
and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by last reported Sale Price of the
Common Stock (determined as provided in the definition of the Current
Market Price) on the Trading Day next succeeding the Expiration Time,
such reduction (if any) shall become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event
that the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all or a portion of such purchases are
rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such (or such portion of
the) tender offer had not been made. If the application of this Section
10.03(f) to any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under this Section
10.03(f).
(g) For purposes of this Section 10.03, the following terms shall
have the meaning indicated:
(i) "Current Market Price" shall mean the average of the
daily Sale Prices per share of Common Stock for the ten
consecutive Trading Days selected by the Company commencing no
more than 30 Trading Days before and ending not later than the
earlier of such date of determination and the day before the "ex"
date with respect to the issuance, distribution, subdivision or
combination requiring such computation immediately prior to the
date in question. For purpose of this paragraph, the term "ex"
date, (1) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades, regular
way, on the relevant exchange or in the relevant market from
which the Sale Price was obtained without the right to receive
such issuance or distribution, and (2) when used with respect to
any subdivision or combination of shares of Common Stock, means
the first date on which the Common Stock trades, regular way, on
such exchange or in such market after the time at which such
subdivision or combination becomes effective.
In the event that another issuance, distribution, subdivision,
combination or tender or exchange offer to which Section 10.03 applies
occurs during the period applicable for calculating "Current Market
Price" pursuant to the definition in the preceding paragraph, "Current
Market Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision, combination or tender or exchange
offer on the Sale Price of the Common Stock during such period.
(ii) "Fair Market Value", or "fair market value" shall mean
the amount which a willing buyer would pay a willing seller in an
arm's-length transaction.
(iii) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or
other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed
for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).
(h) The Company may make such increases in the Conversion Rate,
in addition to those required by Sections 10.03(a), (b), (c), (d), (e)
or (f) as the Board of Directors considers to be advisable; provided,
however, that such increase in the Conversion Rate shall not adversely
affect the interests of the Holders of Securities (after taking into
account tax and other consequences of such increase).
To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of
time if the period is at least twenty (20) days, the increase is
irrevocable during the period and the Board of Directors shall have
made a determination that such increase would be in the best interests
of the Company, which determination shall be conclusive. Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the
Company shall mail to holders of record of the Securities a notice of
the increase at least fifteen (15) days prior to the date the
increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be
in effect.
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent
(1%) in such rate; provided, however, that any adjustments that by reason
of this Section 10.03 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under
this Article 10 shall be made by the Company and shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be, with one half-cent and 0.005 of a share, respectively, being rounded
upward. No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest. To
the extent the Securities become convertible into cash, assets, property or
securities (other than capital stock of the Company), no adjustment need be
made thereafter as to the cash, assets, property or such securities.
(j) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Responsible Officer of the
Trustee shall have received such Officers' Certificate, the Trustee shall
not be deemed to have knowledge of any adjustment of the Conversion Rate
and may assume that the last Conversion Rate of which it has knowledge is
still in effect. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Rate setting
forth the adjusted Conversion Rate and the date on which each adjustment
becomes effective and shall mail such notice of such adjustment of the
Conversion Rate to the holder of each Security at his last address
appearing on the Security register provided for in Section 2.03 of this
Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(k) In any case in which this Section 10.03 provides that an
adjustment shall become effective immediately after (1) a record date or
Record Date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to
Section 10.03(a), (3) a date fixed for the determination of stockholders
entitled to receive rights or warrants pursuant to Section 10.03(b), or (4)
the Expiration Time for any tender offer pursuant to Section 10.03(f),
(each a "Determination Date"), the Company may elect to defer until the
occurrence of the relevant Adjustment Event (as hereinafter defined) (x)
issuing to the holder of any Security converted after such Determination
Date and before the occurrence of such Adjustment Event, the additional
shares of Common Stock or other securities issuable upon such conversion by
reason of the adjustment required by such Adjustment Event over and above
the Common Stock issuable upon such conversion before giving effect to such
adjustment and (y) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 10.03(a). For purposes of this Section
10.03(k), the term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence
of such event,
(ii) in any case referred to in clause (2) hereof, the date any
such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) or clause (5) hereof,
the date a sale or exchange of Common Stock pursuant to such tender or
exchange offer is consummated and becomes irrevocable.
(l) For purposes of this Section 10.03, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury
of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
SECTION 10.04. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification
or change of the outstanding shares of Common Stock (other than a
subdivision or combination to which Section 10.03(c) applies), (ii) any
consolidation, merger, statutory share exchange or combination of the
Company with another Person as a result of which holders of Common Stock
shall be entitled to receive stock, other securities or other property or
assets (including cash) with respect to or in exchange for such Common
Stock, or (iii) any sale or conveyance of the properties and assets of the
Company substantially as an entirety to any other Person as a result of
which holders of Common Stock shall be entitled to receive stock, other
securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock, then the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as
in force at the date of execution of such supplemental indenture) providing
that each Security shall be convertible into the kind and amount of shares
of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
statutory share exchange, combination, sale or conveyance by a holder of a
number of shares of Common Stock issuable upon conversion of such
Securities (assuming, for such purposes, a sufficient number of authorized
shares of Common Stock are available to convert all such Securities)
immediately prior to such reclassification, change, consolidation, merger,
statutory share exchange, combination, sale or conveyance assuming such
holder of Common Stock did not exercise his rights of election, if any, as
to the kind or amount of stock, other securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, statutory share exchange, combination, sale or
conveyance (provided that, if the kind or amount of stock, other securities
or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, statutory share exchange,
combination, sale or conveyance is not the same for each share of Common
Stock in respect of which such rights of election shall not have been
exercised ("nonelecting share"), then for the purposes of this Section
10.04 the kind and amount of stock, other securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, statutory share exchange, combination, sale or
conveyance for each nonelecting share shall be deemed to be the kind and
amount so receivable per share by a plurality of the nonelecting shares).
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article 10.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Securities, at its address
appearing on the Security register provided for in Section 2.03 of this
Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, statutory
share exchanges, combinations, sales and conveyances.
If this Section 10.04 applies to any event or occurrence, Section
10.03 shall not apply.
SECTION 10.05. Taxes on Shares Issued. The issue of stock certificates
on conversions of Securities shall be made without charge to the converting
Holder for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in any name other than
that of the holder of any Securities converted, and the Company shall not
be required to issue or deliver any such stock certificate unless and until
the Person or Persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 10.06. Reservation of Shares, Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock.
(a) The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for the conversion of the Securities from
time to time as such Securities are presented for conversion.
(b) Before taking any action which would cause an adjustment
increasing the Conversion Rate to an amount that would cause the Conversion
Price to be reduced below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Securities, the Company will
take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of
such Common Stock at such adjusted Conversion Rate.
(c) (i) The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities or in payment of the Purchase
Price or the Change of Control Purchase Price will upon issue be fully paid
and non-assessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
(ii) The Company covenants that, if any shares of Common Stock to
be provided for the purpose of conversion of Securities hereunder or
for payment of the Purchase Price or the Change of Control Purchase
Price require registration with or approval of any governmental
authority under any federal or state law before such shares may be
validly issued upon conversion, the Company will in good faith and as
expeditiously as possible, to the extent then permitted by the rules
and interpretations of the Securities and Exchange Commission (or any
successor thereto), endeavor to secure such registration or approval,
as the case may be.
(iii) The Company further covenants that, if at any time the
Common Stock shall be listed on the NYSE or any other national
securities exchange or automated quotation system, the Company will,
if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so
listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Security or in payment of the
Purchase Price or the Change of Control Purchase Price; provided,
however, that, if the rules of such exchange or automated quotation
system permit the Company to defer the listing of such Common Stock
until the first conversion of the Securities into Common Stock or the
first payment of the Purchase Price or the Change of Control Purchase
Price in Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable
upon conversion of the Securities or in payment of the Purchase Price
or the Change of Control Purchase Price in accordance with the
requirements of such exchange or automated quotation system at such
time.
SECTION 10.07. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility
to any holder of Securities to determine the Conversion Rate or whether any
facts exist which may require any adjustment of the Conversion Rate, or
with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. The
Trustee and any other conversion agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Security; and the Trustee
and any other conversion agent make no representations with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Security for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 10. Without limiting the generality of the
foregoing, neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in
any supplemental indenture entered into pursuant to Section 10.04 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their
Securities after any event referred to in such Section 10.04 or to any
adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee
prior to the execution of any such supplemental indenture) with respect
thereto.
Section 10.08. Notice To Holders Prior To Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 10.03; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe
for or purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par value,
or from no par value to par value), or of any consolidation, merger or
statutory share exchange to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to
each Holder of Securities at his address appearing on the register provided
for in Section 2.03 of this Indenture, as promptly as possible but in any
event at least ten (10) days prior to the applicable date hereinafter
specified, a notice stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution of rights or warrants, or,
if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are
to be determined, or (y) the date on which such reclassification,
consolidation, merger, or statutory share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation,
merger, or statutory share exchange, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, or statutory share
exchange, sale, transfer, dissolution, liquidation or winding up.
SECTION 10.09. Rights Issued in Respect of Common Stock Issued upon
Conversion. The Company has entered into a Rights Agreement dated as of
June 14, 1994 between the Company and Xxxxx Fargo Bank Minnesota, N.A., (as
amended from time to time, the "Rights Agreement"). Under the Rights
Agreement, preference share purchase rights (the "Rights") have been, and
may in the future be, issued in respect of shares of Common Stock. Each
share of Common Stock issued upon conversion of Securities pursuant to this
Article 10 shall be entitled to receive the appropriate number of Rights,
if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as provided by and
subject to the terms of the Rights Agreement as in effect at the time of
such conversion. If hereafter the Rights separate from the Common Stock in
accordance with the provisions of the Rights Agreement so that a
Securityholder would thereafter not be entitled to receive any Rights in
respect of the Common Stock issuable upon conversion of such Security, the
Conversion Rate will be adjusted as provided in Section 10.03(d) on the
separation date. In lieu of any such adjustment, the Company may amend the
Rights Agreement to provide that upon conversion Securityholders will
receive, in addition to the Common Stock issuable upon such conversion, the
Rights which would have attached to such shares of Common Stock if the
Rights had not become separated from the Common Stock pursuant to the
provisions of the Rights Agreement.
If the Company hereafter adopts any stockholder rights plan similar to
the Rights Agreement, a Securityholder shall be entitled to receive upon
conversion of its Securities in addition to the shares of Common Stock
issuable upon conversion the related rights for the Common Stock, whether
or not the rights under the future stockholder rights plan have separated
from the Common Stock at the time of conversion, but otherwise subject to
the generally applicable terms of such plan and no additional adjustment to
the Conversion Rate shall be made for the future stockholder rights plan
under Section 10.03(d).
Section 10.10. Unconditional Right Of Holders To Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
convert its Security in accordance with this Article 10 and to bring an
action for the enforcement of any such right to convert, and such rights
shall not be impaired or affected without the consent of such Holder.
Article 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required
provision shall control.
Section 11.02. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows
or transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:
if to the Company:
Sierra Health Services, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Facsimile No.: 000-000-0000
if to the Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
MAC N9303-000
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000/2134
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent,
Conversion Agent or co-registrar.
Section 11.03. Communication By Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.04. Certificate And Opinion As To Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required In Certificate Or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
Section 11.06. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 11.07. Rules By Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting
of Securityholders. The Registrar, the Conversion Agent and the Paying
Agent may make reasonable rules for their functions.
Section 11.08. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is
a payment in respect of the Securities, no interest shall accrue with
respect to such payment for the intervening period.
Section 11.09. GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 11.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.
Section 11.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of
the Trustee in this Indenture shall bind its successor.
Section 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to
prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
SIERRA HEALTH SERVICES, INC.
By:
-------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
N.A., As Trustee
By:
-------------------------
Name:
Title:
EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS
THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT OF 1933, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF
ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, FOR THE BENEFIT
OF SIERRA HEALTH SERVICES, INC. (THE "ISSUER") THAT THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
OF 1933 (IF AVAILABLE), AND IN THE CASE OF (A) THROUGH (D) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION. EACH HOLDER WILL NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERENCED ABOVE.
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
SIERRA HEALTH SERVICES, INC.
2.25% Senior Convertible Debentures Due 2023
REGISTERED
CUSIP: 000000XX0
ISSUE DATE: March 3, 2003 Principal Amount: $100,000,000
No. R-1
SIERRA HEALTH SERVICES, INC., a Nevada corporation, promises to pay to Cede
& Co. or registered assigns, the principal amount of One Hundred Million
dollars ($100,000,000), on March 15, 2023.
Interest Rate: 2.25% per year.
Interest Payment Dates: March 15 and September 15 of each year, commencing
September 15, 2003.
Interest Record Date: March 1 and September 15 of each year.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ______________ SIERRA HEALTH SERVICES, INC.
By:__________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
----------------------------,
( )
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Signatory
Dated: ________________
[FORM OF REVERSE OF GLOBAL SECURITY]
2.25% Senior Convertible Debentures Due 2023
This Security is one of a duly authorized issue of 2.25% Senior Convertible
Debentures Due 2023 (the "Securities") of Sierra Health Services, Inc., a Nevada
corporation (including any successor corporation under the Indenture hereinafter
referred to, the "Company"), issued under an Indenture, dated as of March 3,
2003 (the "Indenture"), between the Company and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (the "Trustee"). The terms of the Security include those stated
in the Indenture, those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended ("TIA"), and those set forth in this Security.
This Security is subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of all such terms. To the extent permitted
by applicable law, in the event of any inconsistency between the terms of this
Security and the terms of the Indenture, the terms of the Indenture shall
control. Capitalized terms used but not defined herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest.
The Securities shall bear interest on the principal amount thereof at a
rate of 2.25% per year. The Company shall also pay Liquidated Damages as set
forth in the Registration Rights Agreement.
Interest will be payable semi-annually on each Interest Payment Date to
Holders at the close of business on the preceding Interest Record Date. Interest
will be computed on the basis of a 360-day year comprised of twelve 30 day
months.
The Company will pay Interest to a person other than the Securityholder of
record on the Interest Record Date if the Company elects to redeem or
Securityholders elect to require the Company to repurchase, the Securities on a
date that is after a Interest Record Date but on or prior to the corresponding
Interest Payment Date. In that instance, the Company will pay accrued and unpaid
Interest on the Securities being redeemed to, but not including, the Redemption
Date or the Repurchase Date, as the case may be, to the same person to whom it
will pay the principal of those Securities.
If the principal amount of any Security, or any accrued and unpaid
Interest, or Liquidated Damages, if any, are not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to Section 5 hereof, upon the date set
for payment of the Purchase Price or Change in Control Purchase Price pursuant
to Section 6 hereof, upon the Stated Maturity of the Securities, upon the
Interest Payment Dates or upon the Liquidated Damages Payment Dates as defined
in the Registration Rights Agreement), then in each such case the overdue amount
shall, to the extent permitted by law, bear cash interest at the rate of 2% per
annum, compounded semiannually, which interest shall accrue from the date such
overdue amount was originally due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest shall be
payable in cash on demand but if not so demanded shall be paid quarterly to the
Holders on the last day of each quarter.
2. Method of Payment.
Except as provided below, the Company shall pay Interest on (i) Global
Securities, to DTC in immediately available funds, (ii) any Certificated
Security having an aggregate principal amount of $5,000,000 or less, by check
mailed to the Holder of such Security and (iii) any Certificated Security having
an aggregate principal amount of more than $5,000,000, by wire transfer in
immediately available funds at the election of the Holder of any such Security.
At Stated Maturity, the Company will pay Interest on Certificated
Securities at the Company's office or agency in New York City.
Subject to the terms and conditions of the Indenture, the Company will make
payments in cash, shares of Common Stock or a combination thereof, as the case
may be, in respect of Redemption Prices, Purchase Prices, Change of Control
Purchase Prices and at Stated Maturity to Holders who surrender Securities to a
Paying Agent to collect such payments in respect of the Securities. The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may make such cash payments by check payable in such money.
3. [Reserved]
4. Indenture.
The Securities are general unsecured obligations of the Company limited to
$100,000,000 aggregate principal amount (up to $115,000,000 aggregate principal
amount if the initial purchaser's option set forth in the Purchase Agreement is
exercised in full). The Indenture does not limit other indebtedness of the
Company, secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable for cash at the option of the Company, in whole or in part, at any
time or from time to time on, or after March 20, 2008 upon not less than 30 nor
more than 60 days' notice by mail for a redemption price equal to the principal
amount of those Securities plus accrued and unpaid Interest and Liquidated
Damages, if any, on those Securities up to (but excluding) the Redemption Date
(the "Redemption Price").
In no event will any Security be redeemable before March 20, 2008.
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, all or any portion of
the Securities held by such Holder on March 15, 2008, March 15, 2013 and March
15, 2018 in integral multiples of $1,000 at a Purchase Price equal to the
principal amount of those Securities plus accrued and unpaid Interest and
Liquidated Damages, if any, on those Securities up to (but excluding) the
Purchase Date. To exercise such right, a Holder shall deliver to the Paying
Agent a Purchase Notice containing the information set forth in the Indenture,
at any time from the opening of business on the date that is 20 Business Days
prior to such Purchase Date until the close of business on the third Business
Day prior to such Purchase Date, and shall deliver the Securities to the Paying
Agent as set forth in the Indenture.
The Purchase Price may be paid, at the option of the Company, in cash or by
the issuance and delivery of shares of Applicable Stock, or in any combination
thereof, subject to the terms and conditions of the Indenture.
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to offer to purchase the
Securities held by such Holder within 30 days (which purchase shall occur 30
days after the date of such offer) after the occurrence of a Change of Control
of the Company for a Change of Control Purchase Price equal to the principal
amount of those Securities plus accrued and unpaid Interest, and Liquidated
Damages, if any, on those Securities up to (but excluding) the Change of Control
Purchase Date. The Change of Control Purchase Price may be paid, at the option
of the Company, in cash or by the issuance and delivery of shares of Applicable
Stock, or in any combination thereof, subject to the terms and conditions of the
Indenture.
Holders have the right to withdraw any Purchase Notice or Change of Control
Purchase Notice, as the case may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or Applicable Stock if permitted under the Indenture)
sufficient to pay the Purchase Price or Change of Control Purchase Price, as the
case may be, of all Securities or portions thereof to be purchased as of the
Purchase Date or the Change of Control Purchase Date, as the case may be, is
deposited with the Paying Agent, on the Business Day following the Purchase Date
or the Change of Control Purchase Date, Interest, and Liquidated Damages, if
any, will cease to accrue on such Securities (or portions thereof) immediately
after such Purchase Date or Change of Control Purchase Date, and the Holder
thereof shall have no other rights as such other than the right to receive the
Purchase Price or Change of Control Purchase Price upon surrender of such
Security.
7. Notice of Redemption.
Notice of redemption pursuant to Section 5 of this Security will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent prior
to or on the Redemption Date, immediately on and after such Redemption Date
Interest, and Liquidated Damages, if any, will cease to accrue on such
Securities or portions thereof. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in integral multiples of
$1,000 of principal amount.
8. Conversion.
Subject to and in compliance with the provisions of the Indenture
(including, without limitation, the conditions to conversion of this Security
set forth in Section 10.01 thereof), a Holder is entitled, at such Holder's
option, to convert the Holder's Security (or any portion of the principal amount
thereof that is $1,000 or an integral multiple $1,000), into fully paid and
nonassessable shares of Common Stock at the Conversion Price in effect at the
time of conversion.
The Company will notify Holders of any event triggering the right to
convert the Securities as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered a Purchase Notice or
Change of Control Purchase Notice, as the case may be, exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if such Purchase Notice or Change of Control Purchase Notice, as the case
may be, is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 54.6747 shares of Common Stock per $1,000
principal amount, subject to adjustment in certain events described in the
Indenture. The Conversion Rate shall not be adjusted for any accrued and unpaid
Interest, or Liquidated Damages. Upon conversion, no payment shall be made by
the Company with respect to accrued and unpaid Interest or Liquidated Damages,
if any. Instead, such amount shall be deemed paid by the shares of Common Stock
delivered upon conversion of any Security. In addition, no payment or adjustment
shall be made in respect of dividends on the Common Stock, except as set forth
in the Indenture.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the Notice of Conversion attached hereto (or complete and manually
sign a facsimile of such notice) and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay any transfer or
similar tax, if required.
No fractional shares of Common Stock shall be issued upon conversion of any
Security. Instead of any fractional share of Common Stock that would otherwise
be issued upon conversion of such Security, the Company shall pay a cash
adjustment as provided in the Indenture.
If the Company (i) is a party to a consolidation, merger, statutory share
exchange or combination, (ii) reclassifies the Common Stock, or (iii) conveys,
transfers or leases its properties and assets substantially as an entirety to
any Person, the right to convert a Security into shares of Common Stock may be
changed into a right to convert it into securities, cash or other assets of the
Company or such other Person, in each case in accordance with the Indenture.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day prior to the Redemption Date,
may be deemed to be purchased from the Holders of such Securities at an amount
not less than the Redemption Price, by one or more investment bankers or other
purchasers who may agree with the Company to purchase such Securities from the
Holders, to convert them into shares of Common Stock and to make payment for
such Securities to the Trustee in trust for such Holders.
10. Paying Agent, Conversion Agent, Registrar and Calculation Agent.
Initially, the Trustee will act as Paying Agent, Conversion Agent,
Registrar and Calculation Agent. The Company may appoint and change any Paying
Agent, Conversion Agent, Registrar or Calculation Agent without notice, other
than notice to the Trustee; provided that the Company will maintain at least one
Paying Agent in the State of New York, City of New York, Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or any
of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or Calculation Agent.
11. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Change of Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.
12. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
13. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
14. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities and
(ii) certain Events of Defaults may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Securityholder, the Company and the Trustee may amend the
Indenture or the Securities (i) to add to the covenants of the Company for the
benefit of the Holders of Securities, (ii) to surrender any right or power
conferred upon the Company in the Indenture, (iii) to provide for conversion
rights of Holders of Securities if any reclassification or change of the
Company's Common Stock or any consolidation, merger or sale of the Company's
assets substantially as an entirety occurs, (iv) to provide for the assumption
of the Company's obligations to the Holders of Securities in the case of a
merger, consolidation, conveyance, transfer or lease pursuant to Article 5 of
the Indenture, (v) to increase the Conversion Rate; provided, however, that such
increase in the Conversion Rate shall not adversely affect the interest of the
Holders of Securities (after taking into account tax and other consequences of
such increase), (vi) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, (vii) to
make any changes or modifications necessary in connection with the registration
of the Securities under the Securities Act as contemplated in the Registration
Rights Agreement; provided, however, that such action pursuant to this clause
does not, in the good faith opinion of the Board of Directors of the Company (as
evidenced by a Board Resolution) and the Trustee, adversely affect the interests
of the Holders of Securities in any material respect, (viii) to cure any
ambiguity, to correct or supplement any provision in the Indenture which may be
inconsistent with any other provision therein or which is otherwise defective,
or to make any other provisions with respect to matters or questions arising
under the Indenture which the Company may deem necessary or desirable and which
shall not be inconsistent with the provisions of the Indenture; provided,
however, that such action pursuant to this clause does not, in the good faith
opinion of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, adversely affect the interests of the Holders of
Securities in any material respect, and (ix) to add or modify any other
provisions in the Indenture with respect to matters or questions arising
hereunder which the Company and the Trustee may deem necessary or desirable and
which will not adversely affect the interests of the Holders of Securities in
any material respect.
15. Defaults and Remedies.
If any Event of Default with respect to Securities shall occur and be
continuing, the principal amount of the Securities and any accrued and unpaid
Interest, and accrued and unpaid Liquidated Damages, if any, on all the
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. Calculations in Respect of Securities.
The Company or its agents will be responsible for making all calculations
called for under the Securities including, but not limited to, determination of
the market prices for the Securities and of the Common Stock and the amounts of
Liquidated Damages, if any, accrued on the Securities. Any calculations made in
good faith and without manifest error will be final and binding on Holders of
the Securities. The Company or its agents will be required to deliver to the
Trustee a schedule of its calculations and the Trustee will be entitled to
conclusively rely upon the accuracy of such calculations without independent
verification.
19. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorize signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
23. Copy of Indenture.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
SIERRA HEALTH SERVICES, INC.
0000 Xxxxx Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Investor Relations
Facsimile No.: (000) 000-0000
24. Registration Rights.
The Holders of the Securities are entitled to the benefits of a Resale
Registration Rights Agreement, dated as of March 3, 2003, between the Company
and Banc of America Securities LLC, as representative of the several initial
purchasers, including the receipt of Liquidated Damages upon a Registration
Default (as defined in such agreement). The Company shall make payments of
Liquidated Damages on the Liquidated Damages Payment Dates (as defined in the
Registration Rights Agreement), but otherwise in accordance with the provisions
set forth herein for the payment of Interest.
------------------------------------------------ ------ ---------------------------------------------
ASSIGNMENT FORM CONVERSION NOTICE
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------------------------------------------------ ------ ---------------------------------------------
To assign this Security, fill in the form To convert this Security into Common Stock
below: of the Company, check the box [ ]
------------------------------------------------ ------ ---------------------------------------------
------------------------------------------------ ------ ---------------------------------------------
I or we assign and transfer this Security to To convert only part of this Security,
__________________________________________________ state the principal amount to be converted
(Insert assignee's soc. sec. or tax ID no.) (which must be $1,000 or an integral
_____________________________ multiple of $1,000):
-----------------------------
_____________________________ If you want the stock certificate made out
(Print or type assignee's name, address and in another person's name fill in the form
zip code) below:
----------------------------------------------------------
and irrevocably appoint (Insert the other person's soc. sec. tax ID
no.)
____________________ agent to transfer this ________________________________________________________________________________________________________________________________________________
Security on the books of the Company. The (Print or type other person's name, address
agent may substitute another to act for him. and zip code)
------------------------------------------------ ------ ---------------------------------------------
Date: __________ Your Signature: _________________________________
--------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:_____________________________
Authorized Signatory
SCHEDULE OF INCREASES AND DECREASES
OF GLOBAL SECURITY
Initial Principal Amount of Global Security: One Hundred Million dollars ($100,000,000).
--------------------- ------------------- ------------------- ------------------- -------------------
Date Amount of Amount of Principal Amount Notation by
of Global
Increase in Decrease in Security After
Principal Amount Principal Amount Increase or Registrar or
of Global Security of Global Security Decrease Security Custodian
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
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EXHIBIT B
[FORM OF FACE OF CERTIFICATED SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. EACH PURCHASER OF THIS NOTE
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT OF 1933, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY
INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, FOR THE BENEFIT OF
SIERRA HEALTH SERVICES, INC. (THE "ISSUER") THAT THIS SECURITY MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) TO THE ISSUER, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), AND IN THE
CASE OF (A) THROUGH (D) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION. EACH HOLDER
WILL NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERENCED ABOVE.
The foregoing legend may be removed from this Security on satisfaction of
the conditions specified in the Indenture.
SIERRA HEALTH SERVICES, INC.
2.25% Senior Convertible Debentures Due 2023
REGISTERED
CUSIP: 000000XX0
ISSUE DATE: March 3, 2003 Principal Amount: $___________
No. R-
SIERRA HEALTH SERVICES, INC., a Nevada corporation, promises to pay to Cede
& Co. or registered assigns, the principal amount of __________________
dollars ($__________), on ____________, 2023.
Interest Rate: 2.25% per year.
Interest Payment Dates: March 15 and September 15 of each year, commencing
September 15, 2003.
Interest Record Date: March 1 and September 1 of each year.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _____________, 2003 SIERRA HEALTH SERVICES, INC.
By: _______________________
Title: _____________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
----------------------------,
Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Signatory
Dated: _____________, 2003
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
SIERRA HEALTH SERVICES, INC.
2.25% Senior Convertible Debentures Due 2023
Transfer Certificate
In connection with any transfer of any of the Securities within the period
prior to the expiration of the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as amended (the "Securities
Act") (or any successor provision), the undersigned registered owner of this
Security hereby certifies with respect to $____________ principal amount of the
above-captioned Securities presented or surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer, or for exchange or
conversion where the securities issuable upon such exchange or conversion are to
be registered in a name other than that of the undersigned registered owner
(each such transaction being a "transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
[_] A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or
[_] The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or
[_] The transfer of the Surrendered Securities complies with Rule 144A
under the Securities Act; or
[_] The transfer of the Surrendered Securities is pursuant to Rule 144
under the Securities Act and each of the conditions set forth in such
rule have been met;
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act
(an "Affiliate").
[_] The transferee is an Affiliate of the Company.
DATE: __________________________________
Signature(s)
(If the registered owner is a corporation, partnership or fiduciary, the
title of the person signing on behalf of such registered owner must be stated.)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
