================================================================================
MIRANT CORPORATION
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
TRUSTEE
---------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 8, 2002
to Indenture
Dated as of July 8, 2002
---------------------
5.75% Convertible Senior Notes Due 2007
================================================================================
TABLE OF CONTENTS(1)
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions..........................................................................................1
SECTION 1.02 Other Definitions....................................................................................3
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE 2007 NOTES
SECTION 2.01 Establishment........................................................................................4
SECTION 2.02 Denominations........................................................................................4
SECTION 2.03 Form and Dating......................................................................................4
SECTION 2.04 Security Registrar, Paying Agent and Conversion Agent................................................5
SECTION 2.05 Paying Agent to Hold Money and 2007 Notes in Trust...................................................5
SECTION 2.06 Outstanding 2007 Notes; Determinations of Holders' Action............................................6
SECTION 2.07 Cancellation.........................................................................................7
SECTION 2.08 Persons Deemed Owners................................................................................7
ARTICLE III
REDEMPTION AND PURCHASES
SECTION 3.01 Company's Right to Redeem; Notices to Trustee........................................................7
SECTION 3.02 Selection of 2007 Notes to Be Redeemed...............................................................7
SECTION 3.03 Notice of Redemption.................................................................................8
SECTION 3.04 Effect of Notice of Redemption.......................................................................9
SECTION 3.05 Deposit of Redemption Price..........................................................................9
SECTION 3.06 2007 Notes Redeemed in Part..........................................................................9
SECTION 3.07 Purchase of 2007 Notes at Option of the Holder upon a Fundamental Change.............................9
SECTION 3.08 Effect of Fundamental Change Purchase Notice........................................................12
SECTION 3.09 Deposit of Fundamental Change Purchase Price........................................................13
SECTION 3.10 Covenant to Comply with Securities Laws upon Purchase of 2007 Notes.................................13
SECTION 3.11 Repayment to the Company............................................................................13
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of 2007 Notes...............................................................................14
SECTION 4.02 Commission and Other Reports........................................................................14
-------------------------------
(1) This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
i
SECTION 4.03 Compliance Certificate..............................................................................14
SECTION 4.04 Further Instruments and Acts........................................................................15
SECTION 4.05 Maintenance of Office or Agency.....................................................................15
SECTION 4.06 Delivery of Certain Information.....................................................................15
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 5.01 When Company May Merge or Transfer Assets...........................................................16
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default...................................................................................16
SECTION 6.02 Acceleration........................................................................................18
SECTION 6.03 Other Remedies......................................................................................18
SECTION 6.04 Waiver of Past Defaults.............................................................................18
SECTION 6.05 Control by Majority.................................................................................19
SECTION 6.06 Limitation on Suits.................................................................................19
SECTION 6.07 Rights of Holders to Receive Payment................................................................19
SECTION 6.08 Collection Suit by Trustee..........................................................................19
SECTION 6.09 Trustee May File Proofs of Claim....................................................................20
SECTION 6.10 Priorities..........................................................................................20
SECTION 6.11 Undertaking for Costs...............................................................................21
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.............................................................21
ARTICLE VII
TRUSTEE
SECTION 7.01 Individual Rights of Trustee........................................................................21
ARTICLE VIII
AMENDMENTS
SECTION 8.01 Without Consent of Holders..........................................................................22
SECTION 8.02 With Consent of Holders.............................................................................22
SECTION 8.03 Compliance with Trust Indenture Act.................................................................23
SECTION 8.04 Revocation and Effect of Consents, Waivers and Actions..............................................23
SECTION 8.05 Notation on or Exchange of 2007 Notes...............................................................23
SECTION 8.06 Trustee to Sign Supplemental Indentures.............................................................24
SECTION 8.07 Effect of Supplemental Indentures...................................................................24
ARTICLE IX
CONVERSIONS
SECTION 9.01 Conversion Privilege................................................................................24
SECTION 9.02 Conversion Procedure................................................................................25
SECTION 9.03 Fractional Shares...................................................................................26
ii
SECTION 9.04 Taxes on Conversion.................................................................................26
SECTION 9.05 Company to Provide Stock............................................................................26
SECTION 9.06 Adjustment for Change in Capital Stock..............................................................26
SECTION 9.07 Adjustment for Rights Issue.........................................................................27
SECTION 9.08 Adjustment for Other Distributions..................................................................29
SECTION 9.09 Adjustment for Self Tender Offer....................................................................31
SECTION 9.10 When Adjustment May Be Deferred.....................................................................32
SECTION 9.11 When No Adjustment Required.........................................................................32
SECTION 9.12 Notice of Adjustment................................................................................32
SECTION 9.13 Voluntary Increase..................................................................................33
SECTION 9.14 Notice of Certain Transactions......................................................................33
SECTION 9.15 Reorganization of Company; Special Distributions....................................................33
SECTION 9.16 Company Determination Final.........................................................................34
SECTION 9.17 Trustee's Adjustment Disclaimer.....................................................................34
SECTION 9.18 Simultaneous Adjustments............................................................................34
SECTION 9.19 Successive Adjustments..............................................................................34
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Recitals by Company................................................................................34
SECTION 10.02 Notices 35
SECTION 10.03 Provisions of Original Indenture Not Applicable....................................................36
SECTION 10.04 Ratification and Incorporation of Original Indenture...............................................36
SECTION 10.05 Executed in Counterparts...........................................................................36
SECTION 10.06 Communication by Holders with Other Holders........................................................36
SECTION 10.07 Rules by Trustee, Paying Agent, Conversion Agent and Security Registrar............................36
SECTION 10.08 GOVERNING LAW......................................................................................36
EXHIBIT A .........Form of Global Security
iii
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 8th day of July, 2002,
between MIRANT CORPORATION, a Delaware corporation, having its principal office
at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the
"Company"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation, having its principal corporate trust office at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as of
July 8, 2002 (the "Original Indenture"), with Deutsche Bank Trust Company
Americas, as trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Senior Notes may at
any time be established by the Board of Directors of the Company in accordance
with the provisions of the Original Indenture and the terms of such series may
be described by a supplemental indenture executed by the Company and the
Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of
Senior Notes; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. The following defined terms used herein shall,
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"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.
"Common Stock" shall mean the shares of common stock, $0.01 par value per
share, of the Company existing on the date of this First Supplemental Indenture
or any other shares of Capital Stock of the Company into which such common stock
shall be reclassified or changed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Supplemental Indenture" means this First Supplemental Indenture,
including the applicable provisions of the Original Indenture.
"Global Securities" means 2007 Notes that are in the form of the 2007 Notes
attached hereto as Exhibit A, and that are issued to a Depositary.
"Holder" or "Securityholder" means a registered holder of a 2007 Note.
"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, except trade accounts payable
arising in the ordinary course of business, (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).
"Issue Date" of any 2007 Note means the date on which the 2007 Note was
originally issued or deemed issued as set forth on the face of the 2007 Note.
"Legal Holiday" is any day other than a Business Day.
"Nasdaq System" means the National Association of Securities Dealers
Automated Quotation System.
"NYSE" means The New York Stock Exchange.
"Person" or "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.
"Sale Price" of the shares of Common Stock on any date means the closing
per share sale price (or, if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the
average bid and the average asked prices) on such date as reported on the NYSE
2
or, if the shares of Common Stock are not listed on the NYSE, as reported by the
Nasdaq system. In the absence of such quotations, the Company shall be entitled
to determine the Sale Price on the basis of such quotations as it considers
appropriate.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" means the 2007 Note issued hereunder.
"Securityholder" or "Holder" means a registered holder of a 2007 Note.
"Stated Maturity," when used with respect to any 2007 Note, means July 15,
2007.
"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.
"trading day" means a day during which trading in securities generally
occurs on the NYSE or, if the Common Stock is not listed 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 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.
"Voting Stock" of a person means Capital Stock of such person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.02 Other Definitions.
-----------------------------------
Term Section: Defined in:
"Average Sale Price"................................ 9.07
"beneficial owner".................................. 3.07(a)
"Conversion Agent".................................. 2.04
"Conversion Date"................................... 9.02
"Conversion Rate" .................................. 9.01
"Event of Default".................................. 6.01
"Ex-Dividend Date".................................. 9.08(b)
"Ex-Dividend Time".................................. 9.01
"Expiration Time"................................... 9.09
"Extraordinary Cash Dividend"....................... 9.08(a)
"Fundamental Change"................................ 3.07(a)
"Fundamental Change Purchase Date".................. 3.07(a)
"Fundamental Change Purchase Notice"................ 3.07(c)
"Fundamental Change Purchase Price"................. 3.07(a)
3
"Interest Payment Date"............................. Exhibit A, Paragraph 1
"Measurement Date".................................. 9.09
"Notice of Default"................................. 6.01
"Paying Agent"...................................... 2.04
"Post-Distribution Price"........................... 9.08(b)
"Purchased Shares".................................. 9.09
"Regular Record Date"............................... Exhibit A, Paragraph 1
"Rule 144A Information"............................. 4.06
"Security Register"................................. 2.04
"Securities Registrar".............................. 2.04
"Time of Determination"............................. 9.01
"2007 Notes"........................................ 2.01
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE 2007 NOTES
SECTION 2.01 Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
5.75% Convertible Senior Notes due 2007 (the "2007 Notes").
There are to be authenticated and delivered up to $425,500,000 principal
amount of 2007 Notes, and such principal amount of 2007 Notes may be increased
from time to time pursuant to Section 301 of the Original Indenture. All 2007
Notes need not be issued at the same time and such series may be reopened at any
time, without the consent of any Holder, for issuances of additional 2007 Notes.
Any such additional 2007 Notes will have the same interest rate, maturity and
other terms as those initially issued. No 2007 Notes shall be authenticated and
delivered in excess of the principal amount as so increased, except as provided
by Sections 203, 303, 304, 907 or 1107 of the Original Indenture. The 2007 Notes
shall be issued in definitive fully registered form.
The form of the Trustee's Certificate of Authentication for the 2007 Notes
shall be in substantially the form set forth in Exhibit A hereto.
Each 2007 Note shall be dated the date of authentication thereof and shall
bear interest from the date of original issuance thereof or from the most recent
Interest Payment Date to which interest has been paid or duly provided for.
SECTION 2.02 Denominations. The 2007 Notes shall be issued in minimum
denominations of $1,000, or any integral multiple of $1,000, in excess thereof.
SECTION 2.03 Form and Dating. The 2007 Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A, which is a
4
part of this First Supplemental Indenture. To the extent any provisions of the
2007 Notes and this First Supplemental Indenture are in conflict, the provisions
of this First Supplemental Indenture shall control. The 2007 Notes 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 2007 Note shall be dated
the date of its authentication.
(a) Global Securities in General. Each Global Security shall represent such
of the outstanding 2007 Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding 2007 Notes
from time to time endorsed thereon and that the aggregate amount of outstanding
2007 Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global Security to
reflect the amount of any increase or decrease in the amount of outstanding 2007
Notes represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 203 of the
Original Indenture hereof and shall be made on the records of the Trustee and
the Depositary.
SECTION 2.04 Security Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where the 2007 Notes may be presented
for registration of transfer or for exchange ("Security Registrar"), an office
or agency where the 2007 Notes may be presented for purchase or payment ("Paying
Agent") and an office or agency where the 2007 Notes may be presented for
conversion ("Conversion Agent"). The Security Registrar shall keep a register of
the 2007 Notes and of their transfer and exchange ("Securities Register"). 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
Security Registrar, Paying Agent, Conversion Agent or co-registrar (that is not
also the Trustee). The agreement shall implement the provisions of this First
Supplemental 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 Security Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 607 of the Original Indenture. The Company or any Subsidiary
or an Affiliate of either of them may act as Paying Agent, Security Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Security Registrar,
Conversion Agent and Paying Agent in connection with the 2007 Notes.
SECTION 2.05 Paying Agent to Hold Money and 2007 Notes in Trust. Except as
otherwise provided herein, on or prior to each due date of payments in respect
of any 2007 Note, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due
5
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 2007 Notes
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 2.06 Outstanding 2007 Notes; Determinations of Holders' Action. The
2007 Notes outstanding at any time are all the 2007 Notes authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 304 of
the Original Indenture, those delivered to it for cancellation and those
described in this Section 2.06 as not outstanding. A 2007 Note does not cease to
be outstanding because the Company or an Affiliate thereof holds the 2007 Note;
provided, however, that in determining whether the Holders of the requisite
principal amount of 2007 Notes have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, 2007 Notes owned
by the Company or any other obligor upon the 2007 Notes or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only 2007 Notes which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Subject to the foregoing,
only 2007 Notes outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles VI and VIII).
If a 2007 Note is replaced pursuant to Section 304 of the Original
Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced 2007 Note is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this First Supplemental
Indenture, on a Redemption Date, or on the Business Day following a Fundamental
Change Purchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay 2007 Notes payable on that date, then immediately
after such Redemption Date, Fundamental Change Purchase Date or Stated Maturity,
as the case may be, such 2007 Notes shall cease to be outstanding and interest,
if any, on such 2007 Notes shall cease to accrue; provided, that if such 2007
Notes are to be redeemed, notice of such redemption has been duly given pursuant
to this First Supplemental Indenture or provision therefor satisfactory to the
Trustee has been made.
If a 2007 Note is converted in accordance with Article IX, then from and
after the Conversion Date, such 2007 Note shall cease to be outstanding and
interest, if any, shall cease to accrue on such 2007 Note.
6
SECTION 2.07 Cancellation. All 2007 Notes surrendered for payment, purchase
by the Company pursuant to Article III, 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 the
Trustee. The Company may at any time deliver to the Trustee for cancellation any
2007 Notes previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all 2007 Notes so delivered
shall be cancelled by the Trustee. The Company may not issue new 2007 Notes to
replace 2007 Notes it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article IX. No 2007 Notes shall be
authenticated in lieu of or in exchange for any 2007 Notes cancelled as provided
in this Section, except as expressly permitted by the Original Indenture. All
cancelled 2007 Notes held by the Trustee shall be disposed of in accordance with
a Company Order or, in the absence of such a Company Order, in accordance with
the Trustee's customary procedure and the Trustee shall promptly deliver a
certificate of disposition to the Company.
SECTION 2.08 Persons Deemed Owners. Prior to due presentment of a 2007 Note
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 2007 Note is
registered as the absolute owner of such 2007 Note for the purpose of receiving
payment of principal of the 2007 Note or the payment of any Redemption Price or
Fundamental Change Purchase Price in respect thereof, and interest thereon, for
the purpose of conversion and for all other purposes whatsoever, whether or not
such 2007 Note 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.
ARTICLE III
REDEMPTION AND PURCHASES
Article Eleven of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it in its entirety with the following:
SECTION 3.01 Company's Right to Redeem; Notices to Trustee. The Company, at
its option, may redeem the 2007 Notes in accordance with the provisions of
Paragraph 5 of the 2007 Notes. If the Company elects to redeem 2007 Notes
pursuant to Paragraph 5 of the 2007 Notes, it shall notify the Trustee in
writing of the Redemption Date, the principal amount of 2007 Notes to be
redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in Section
3.03 by a Company Order, at least 45 days before the Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee).
SECTION 3.02 Selection of 2007 Notes to Be Redeemed. If less than all the
2007 Notes are to be redeemed, unless the procedures of the Depositary provide
otherwise, the Trustee shall select the 2007 Notes 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 2007 Notes are then listed). The Trustee shall make the selection at
least 35 days but not more than 60 days before the Redemption Date from
7
outstanding 2007 Notes not previously called for redemption. The Trustee may
select for redemption portions of the principal amount of 2007 Notes that have
denominations larger than $1,000.
The 2007 Notes and portions of 2007 Notes that the Trustee selects shall be
in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this First Supplemental Indenture that apply to 2007 Notes called for redemption
also apply to portions of 2007 Notes called for redemption. The Trustee shall
notify the Company promptly of the 2007 Notes or portions of the 2007 Notes to
be redeemed.
If any 2007 Note selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
2007 Note so selected, the converted portion of such 2007 Note shall be deemed
(so far as may be) to be the portion selected for redemption. 2007 Notes, which
have been converted during a selection of 2007 Notes 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 2007 Notes to be redeemed.
The notice shall identify the 2007 Notes 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 2007 Notes called for redemption may be converted
at any time before the close of business on the date
that is two Business Days prior to the Redemption Date;
(6) that Holders who want to convert their 2007 Notes must
satisfy the requirements set forth in Paragraph 8 of
the 2007 Notes;
(7) that 2007 Notes called for redemption must be
surrendered to the Paying Agent at least two (2)
Business Days prior to the Redemption Date to collect
the Redemption Price;
(8) if fewer than all of the outstanding 2007 Notes are to
be redeemed, the certificate numbers, if any, and
principal amounts of the particular 2007 Notes to be
redeemed;
8
(9) that, unless the Company defaults in making payment of
such Redemption Price, interest, if any, on 2007 Notes
called for redemption will cease to accrue on and after
the Redemption Date; and
(10) the CUSIP number(s) of the 2007 Notes.
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 three 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, 2007 Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice except for 2007 Notes
which are converted in accordance with the terms of this First Supplemental
Indenture. Upon surrender to the Paying Agent, such 2007 Notes shall be paid at
the Redemption Price 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 2007 Notes to be redeemed on that date other than 2007
Notes or portions of 2007 Notes 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 2007
Notes pursuant to Article IX. 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 2007 Notes Redeemed in Part. Upon surrender of a 2007 Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new 2007 Note in an authorized
denomination equal in principal amount to the unredeemed portion of the 2007
Note surrendered.
SECTION 3.07 Purchase of 2007 Notes at Option of the Holder upon a
Fundamental Change. (a) If a Fundamental Change occurs, the 2007 Notes not
previously purchased by the Company shall be purchased by the Company, at the
option of the Holder thereof, at the purchase price specified in Paragraph 6 of
the 2007 Notes (the "Fundamental Change Purchase Price"), as of the date (the
"Fundamental Change Purchase Date") that is 45 days after the date of the
Fundamental Change Purchase Notice delivered by the Company, subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.07(c).
A "Fundamental Change" shall be deemed to have occurred at such time after
the 2007 Notes are originally issued as either of the following events shall
occur:
(i) any person, including any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, acquires
beneficial ownership, directly or indirectly, through a purchase,
9
merger or other acquisition transaction or series of transactions, of
shares of the Company's Capital Stock entitling the person to exercise
50% or more of the total voting power of all shares of the Company's
Capital Stock that are entitled to vote generally in elections of
directors, other than an acquisition by the Company, any of its
Subsidiaries or any of its employee benefit plans; or
(ii) the Company merges or consolidates with or into any other
person, any merger of another person into the Company, or the Company
conveys, sells, transfers or leases all or substantially all of its
assets to another person, other than any transaction: (A) that does
not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Company's Capital Stock, or
(B) pursuant to which the holders of Common 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 the election of directors
of the continuing or surviving corporation immediately after the
transaction, or (C) which is effected solely to change the Company's
jurisdiction of incorporation and results in a reclassification,
conversion or exchange of outstanding shares of the Common Stock
solely into shares of common stock of the surviving entity.
Notwithstanding the foregoing provisions of this Section 3.07, a Fundamental
Change shall not be deemed to have occurred if (A) the closing price per share
of Common Stock on the NYSE for any five NYSE trading days within the period of
10 consecutive NYSE trading days ending immediately after the later of a
Fundamental Change or the public announcement of a Fundamental Change, in the
case of a Fundamental Change relating to an acquisition of Capital Stock, or the
period of 10 consecutive NYSE trading days ending immediately before a
Fundamental Change, in the case of a Fundamental Change relating to a merger,
consolidation or asset sale, equals or exceeds 105% of the conversion price of
the 2007 Notes in effect on each of those NYSE trading days or (B) all of the
consideration (excluding cash payments for fractional shares and cash payments
made pursuant to dissenters' appraisal rights) in a merger or consolidation
otherwise constituting a Fundamental Change under clause (i) and/or clause (ii)
above consists of shares of common stock traded on a national securities
exchange or quoted on the Nasdaq National Market (or will be so traded or quoted
immediately following the merger or consolidation) and as a result of the merger
or consolidation the 2007 Notes become convertible into such common stock. For
purposes of this Section 3.07, (x) the conversion price is equal to $1,000
principal amount divided by the Conversion Rate, (y) whether a person is a
"beneficial owner" shall be determined in accordance with Rule 13d-3 under the
Exchange Act and (z) "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 Fundamental Change, the
Company shall mail a written notice of the Fundamental Change 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 Fundamental Change Purchase
Notice to be completed by the Holder and shall state:
(1) briefly, the events causing a Fundamental Change and the date of such
Fundamental Change;
10
(2) the date by which the Fundamental Change Purchase Notice pursuant to
this Section 3.07 must be given;
(3) the Fundamental Change Purchase Date;
(4) the Fundamental Change Purchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that the 2007 Notes as to which a Fundamental Change Purchase Notice
has been given may be converted if they are otherwise convertible
pursuant to Article IX hereof only if the Fundamental Change Purchase
Notice has been withdrawn in accordance with the terms of this First
Supplemental Indenture;
(8) that the 2007 Notes must be surrendered to the Paying Agent to collect
payment;
(9) that the Fundamental Change Purchase Price for any 2007 Note as to
which a Fundamental Change Purchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Fundamental
Change Purchase Date and the time of surrender of such 2007 Note as
described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.07;
(11) briefly, the conversion rights, if any, of the 2007 Notes;
(12) the procedures for withdrawing a Fundamental Change Purchase Notice;
(13) that, unless the Company defaults in making payment of such
Fundamental Change Purchase Price, interest, if any, on 2007 Notes
surrendered for purchase by the Company will cease to accrue on and
after the Fundamental Change Purchase Date; and
(14) the CUSIP number(s) of the 2007 Notes.
(c) A Holder may exercise its rights specified in Section 3.07(a) upon
delivery of an irrevocable written notice of purchase (a "Fundamental Change
Purchase Notice") to the Paying Agent at any time on or prior to the 30th day
after the date the Company delivers its written Fundamental Change Purchase
Notice, stating:
(1) the certificate number of the 2007 Note which the Holder will deliver
to be purchased;
11
(2) the portion of the principal amount of the 2007 Note which the Holder
will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(3) that such 2007 Note shall be purchased pursuant to the terms and
conditions specified in Paragraph 6 of the 2007 Notes.
The delivery of such 2007 Note to the Paying Agent with the Fundamental
Change 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
Fundamental Change Purchase Price therefor; provided, however, that such
Fundamental Change Purchase Price shall be so paid pursuant to this Section 3.07
only if the 2007 Note so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Fundamental Change
Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.07, a portion of a 2007 Note only if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this First
Supplemental Indenture that apply to the purchase of all of a 2007 Note also
apply to the purchase of such portion of such 2007 Note.
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 on the Fundamental Change Purchase Date.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice.
SECTION 3.08 Effect of Fundamental Change Purchase Notice. Upon receipt by
the Paying Agent of the Fundamental Change Purchase Notice specified in Section
3.07(c), the Holder of a 2007 Note in respect of which such Fundamental Change
Purchase Notice was given shall (unless such Fundamental Change Purchase Notice
is withdrawn as specified in the following paragraph) thereafter be entitled to
receive solely the Fundamental Change Purchase Price with respect to such 2007
Note. Such Fundamental Change Purchase Price shall be paid to such Holder,
subject to receipt of funds by the Paying Agent, promptly following the later of
(x) the Fundamental Change Purchase Date with respect to such 2007 Note
(provided the conditions in Section 3.07(c) have been satisfied) and (y) the
time of delivery of such 2007 Note to the Paying Agent by the Holder thereof in
the manner required by Section 3.07(c). 2007 Notes in respect of which a
Fundamental Change Purchase Notice has been given by the Holder thereof may not
be converted pursuant to Article IX hereof on or after the date of the delivery
of such Fundamental Change Purchase Notice unless such Fundamental Change
Purchase Notice has first been validly withdrawn as specified in the following
two paragraphs.
A Fundamental Change 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 Fundamental Change Purchase Notice at any time prior to the close of
business on the last Business Day prior to the Fundamental Change Purchase Date
specifying:
12
(1) the certificate number, if any, of the 2007 Note in respect
of which such notice of withdrawal is being submitted,
(2) the principal amount of the 2007 Note with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such 2007 Note which
remains subject to the original Fundamental Change Purchase
Notice and which has been or will be delivered for purchase
by the Company.
There shall be no purchase of any 2007 Notes pursuant to Section 3.07 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such 2007 Notes, of the required Fundamental Change Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Fundamental Change Purchase Price with respect to such 2007
Notes). The Paying Agent will promptly return to the respective Holders thereof
any 2007 Notes (x) with respect to which a Fundamental Change Purchase Notice
has been withdrawn in compliance with this First Supplemental Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default
in the payment of the Fundamental Change Purchase Price with respect to such
2007 Notes) in which case, upon such return, the Fundamental Change Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
SECTION 3.09 Deposit of Fundamental Change Purchase Price. Prior to 10:00
a.m. (local time in the City of New York) on the Business Day following the
Fundamental Change Purchase Date, 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 2.05) an amount of cash (in immediately available funds
if deposited on such Business Day) sufficient to pay the aggregate Fundamental
Change Purchase Price of all the 2007 Notes or portions thereof which are to be
purchased as of the Fundamental Change Purchase Date.
SECTION 3.10 Covenant to Comply with Securities Laws upon Purchase of 2007
Notes. When complying with the provisions of Section 3.07 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), 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
Section 3.07 to be exercised in the time and in the manner specified in Section
3.07.
SECTION 3.11 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 Paragraph 12 of the 2007 Notes, together with interest
or dividends, if any, thereon, held by them for the payment of the Fundamental
Change Purchase Price; provided, however, that to the extent that
13
the aggregate amount of cash or shares of Common Stock deposited by the Company
pursuant to Section 3.09 exceeds the aggregate Fundamental Change Purchase Price
of the 2007 Notes or portions thereof which the Company is obligated to purchase
as of the Fundamental Change Purchase Date, then, unless otherwise agreed in
writing with the Company, promptly after the Business Day following the
Fundamental Change Purchase Date, the Trustee shall return any such excess to
the Company together with interest or dividends, if any, thereon.
ARTICLE IV
COVENANTS
Article Ten of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it in its entirety with the following:
SECTION 4.01 Payment of 2007 Notes. The Company shall promptly make all
payments in respect of the 2007 Notes on the dates and in the manner provided in
the 2007 Notes or pursuant to this First Supplemental Indenture. Any amounts of
cash or shares of Common Stock to be given to the Trustee or Paying Agent, shall
be deposited by the Company with the Trustee or Paying Agent by 10:00 a.m. New
York City time on the date any such payment is due. Principal amount, Redemption
Price, Fundamental Change Purchase Price and cash interest, if any, shall be
considered paid on the applicable date due if on such date (or, in the case of a
Fundamental Change Purchase Price, on the Business Day following the Fundamental
Change Purchase Date) the Trustee or the Paying Agent holds, in accordance with
this First Supplemental Indenture, cash or securities, if permitted hereunder,
sufficient to pay all such amounts then due.
SECTION 4.02 Commission 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 Commission, 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 Commission may by rules and
regulations prescribe) which the Company is required to file with the Commission
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 Commission had the Company continued to be 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 be subject to such reporting requirements. The Company also shall comply with
the other provisions of Trust Indenture Act 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 on December 31, 2002) an Officers'
Certificate, stating whether or not to the best knowledge of the signers
14
thereof, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of the 2007 Notes, this First Supplemental
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 First Supplemental 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 where 2007
Notes may be presented or surrendered for payment, where the 2007 Notes may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company (other than
service of process) in respect of the 2007 Notes and this First Supplemental
Indenture may be served. The office of Deutsche Bank Trust Company Americas, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Attention: Manager, Project Finance
Group), 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 10.02 of this First Supplemental Indenture.
The Company may also from time to time designate one or more other offices
or agencies where the 2007 Notes 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 2007 Notes or holder or beneficial owner of
shares of Common Stock issued upon conversion thereof, or in accordance with
Section 3.07(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
2007 Notes 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.
15
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Article Eight of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it in its entirety with the following:
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 or lease its properties and assets substantially as an entirety to any
person, or permit any person to consolidate with or merge into the Company,
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, limited liability company, partnership or trust
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 2007 Notes and this First Supplemental 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 V 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 all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Article Five of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it in its entirety with the following:
SECTION 6.01 Events of Default. An "Event of Default" occurs if:
16
(1) the Company defaults in the payment of the principal amount plus
accrued and unpaid cash interest on any 2007 Note when the same becomes due and
payable at its Stated Maturity, upon redemption or purchase at the option of the
Holder following a Fundamental Change when the same becomes due and payable;
(2) the Company defaults in the payment of any cash interest when due and
payable, and continuance of such default for a period of 30 days;
(3) the Company fails to deliver the shares of Common Stock upon an
appropriate election by Holders to convert the 2007 Notes into shares of Common
Stock, and continuance of such default for a period of 10 days;
(4) the Company fails to comply in any material respect with any of its
agreements or covenants in the 2007 Notes or this First Supplemental Indenture
(other than those referred to in clause (1), (2) or (3) above) and such failure
continues for 90 days after receipt by the Company of a Notice of Default;
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for 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 90 consecutive
days; or
(6) the commencement by the Company of a case or proceeding under any
applicable federal or state 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 it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the Company
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the 2007 Notes at the time outstanding notify the Company
17
and the Trustee, of the Default and the Company does not cure such 17 Default
(and such Default is not waived) within the time specified in clause (4) 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 Company shall deliver to the Trustee, within 30 days after it becomes
aware of the occurrence thereof, written notice of any event which with the
giving of notice or the lapse of time, or both, would mature into an Event of
Default under clause (4) above, its status and what action the Company is taking
or proposes to take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.01(5) or (6)) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the 2007 Notes at the time outstanding by notice to the
Company and the Trustee, may declare the principal amount plus accrued and
unpaid cash interest, if any, on all the 2007 Notes 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(5) or (6)
occurs and is continuing, the principal amount plus accrued and unpaid cash
interest, if any, on all the 2007 Notes 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
2007 Notes 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 plus accrued and cash unpaid interest, if any, that have become
due solely as a result of acceleration and if all amounts due to the Trustee
under Section 607 of the Original Indenture have been paid. No such rescission
shall affect any subsequent 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 plus accrued and unpaid cash interest, if any, on the
2007 Notes or to enforce the performance of any provision of the 2007 Notes or
this First Supplemental Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the 2007 Notes or does not produce any of the 2007 Notes 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 2007 Notes at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (a) an Event of Default described
in Section 6.01(1), (2), or (3) or (b) a Default in respect of a provision that
under Section 8.02 cannot be amended without the consent of each Securityholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right. This
Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act
and such Section 316(a)(1)(B) is hereby expressly excluded from this First
18
Supplemental Indenture, as permitted by the Trust Indenture Act.
SECTION 6.05 Control by Majority. The Holders of a majority in aggregate
principal amount of the 2007 Notes 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
First Supplemental 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 Trust Indenture Act and such Section 316(a)(1)(A) is hereby expressly
excluded from this First Supplemental Indenture, as permitted by the Trust
Indenture Act.
SECTION 6.06 Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this First Supplemental Indenture or the 2007 Notes
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 2007
Notes 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 2007
Notes 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 First Supplemental 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 First Supplemental Indenture, the right of any Holder to
receive payment of the principal amount of the 2007 Notes plus accrued and
unpaid interest in respect of the 2007 Notes held by such Holder, on or after
the respective due dates expressed in the 2007 Notes or any Redemption Date, and
to convert the 2007 Notes in accordance with Article IX, 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(1) occurs and is continuing, the Trustee may recover judgment in
19
its own name and as trustee of an express trust against the Company for the
whole amount owing with respect to the 2007 Notes and the amounts provided for
in Section 607 of the Original Indenture.
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 2007 Notes or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount of the 2007 Notes plus accrued and unpaid
interest in respect of the 2007 Notes 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 amount of the principal amount
of the 2007 Notes plus accrued and unpaid interest 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 607 of the Original Indenture) 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 to 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 607 of the Original Indenture.
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 2007 Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to this
Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 607 of the Original
Indenture;
SECOND: to Securityholders for amounts due and unpaid on the 2007 Notes for
the principal amount of the 2007 Notes plus accrued and unpaid interest,
ratably, without preference or priority of any kind, according to such amounts
due and payable on the 2007 Notes; 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
20
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 First Supplemental 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 2007 Notes at the time outstanding. This Section 6.11
shall be in lieu of Section 315(e) of the Trust Indenture Act and such Section
315(e) is hereby expressly excluded from this First Supplemental Indenture, as
permitted by the Trust Indenture Act.
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 2007
Notes plus accrued and unpaid interest or any interest on such amounts, as
contemplated herein, or which may affect the covenants or the performance of
this First Supplemental 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 VII
TRUSTEE
Section 605 of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it in its entirety, with the following:
SECTION 7.01 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of 2007 Notes 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, Security Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 608 and 613 of the Original Indenture.
ARTICLE VIII
AMENDMENTS
Article Nine of the Original Indenture is hereby amended, solely with
respect to the 2007 Notes, by replacing it with the following:
21
SECTION 8.01 Without Consent of Holders. The Company and the Trustee may
amend this First Supplemental Indenture or the 2007 Notes for one or more of the
following purposes, without the consent of any Securityholder, so long as such
changes, other than those in clauses (2) and (7), do not materially and
adversely affect the interests of the Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency provided that
such modification or amendment does not, in the good faith opinion of the
Company's Board of Directors and the Trustee, adversely affect the interests of
the holders of the 2007 Notes in any material respect;
(2) to make any modifications or amendments that do not, in the good faith
opinion of the Company's Board of Directors (as communicated in writing to the
Trustee), adversely affect the interests of the holders of the 2007 Notes in any
material respect;
(3) to comply with Article V;
(4) to secure the Company's obligations or add any guarantee under the 2007
Notes and this First Supplemental Indenture;
(5) to add Events of Default with respect to the 2007 Notes;
(6) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the Company;
or
(7) to make any change necessary for the registration of the 2007 Notes
under the Securities Act or to comply with the Trust Indenture Act, or any
amendment thereto, or to comply with any requirement of the Commission in
connection with the qualification of the First Supplemental Indenture under the
Trust Indenture Act, provided that such modification or amendment does not, in
the good faith opinion of the Company's Board of Directors (as communicated in
writing to the Trustee), adversely affect the interests of the holders of the
2007 Notes in any material respect.
SECTION 8.02 With Consent of Holders. With the written consent of the
Holders of at least a majority in aggregate principal amount of the 2007 Notes
at the time outstanding, the Company and the Trustee may amend this First
Supplemental Indenture or the 2007 Notes. However, without the consent of each
Securityholder affected, an amendment to this First Supplemental Indenture or
the 2007 Notes may not:
(1) reduce the interest rate referred to in paragraph 1 of the 2007 Notes
or change the time for payment of interest thereon;
(2) reduce the principal amount of or extend the Stated Maturity of any
2007 Note;
(3) reduce the Redemption Price or Fundamental Change Purchase Price of any
2007 Note or change the time at which the 2007 Notes may be redeemed or
repurchased;
22
(4) make any payments on the 2007 Notes payable in currency or securities
other than as stated in the 2007 Note;
(5) make any change in the percentage of the principal amount of 2007 Notes
necessary to waive compliance with the provisions of Section 6.04, Section 6.07
or this Section 8.02, except to increase any percentage set forth therein;
(6) make any change that in the good faith judgment of the Company's Board
of Directors (as communicated in writing to the Trustee) adversely affects the
right to convert any 2007 Note in accordance with the terms thereof and this
First Supplemental Indenture;
(7) make any change that in the good faith judgment of the Company's Board
of Directors (as communicated in writing to the Trustee) adversely affects the
right to require the Company to purchase the 2007 Notes in accordance with the
terms thereof and this First Supplemental Indenture;
(8) impair a Holder's right to institute suit for the enforcement of any
payment on the 2007 Notes;
(9) waive a continuing default or Event of Default regarding any payment on
the 2007 Notes; or
(10) make any change that adversely effects the Holders' rights under
Section 3.08 and Article IX.
It shall not be necessary for the consent of the Holders under this Section
8.02 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 8.02 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.
SECTION 8.03 Compliance with Trust Indenture Act. Every supplemental
indenture and amendment executed pursuant to this Article VIII shall comply with
the Trust Indenture Act.
SECTION 8.04 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 2007 Note hereunder is a continuing consent by the
Holder and every subsequent Holder of that 2007 Note or portion of the 2007 Note
that evidences the same obligation as the consenting Holder's 2007 Note, even if
notation of the consent, waiver or action is not made on the 2007 Note. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as
to such Holder's 2007 Note or portion of the 2007 Note 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 8.05 Notation on or Exchange of 2007 Notes. The 2007 Notes
authenticated and delivered after the execution of any supplemental indenture or
23
amendment pursuant to this Article VIII may, and shall if required by the
Trustee, bear a notation in form approved by the Company and the Trustee as to
any matter provided for in such supplemental indenture or amendment. If the
Company shall so determine, new 2007 Notes so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture or amendment may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding 2007
Notes.
SECTION 8.06 Trustee to Sign Supplemental Indentures. The Trustee shall
sign any supplemental indenture or amendment authorized pursuant to this Article
VIII 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 or amendment. In signing such
supplemental indenture or amendment the Trustee shall receive, and (subject to
the provisions of Section 601 of the Original Indenture) 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 First
Supplemental Indenture.
SECTION 8.07 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture or amendment under this Article VIII, this First
Supplemental Indenture shall be modified in accordance therewith, and such
supplemental indenture or amendment shall form a part of this First Supplemental
Indenture for all purposes; and every Holder of 2007 Notes theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE IX
CONVERSIONS
SECTION 9.01 Conversion Privilege. A Holder of a 2007 Note may convert such
2007 Note into shares of Common Stock at any time during the period stated in
Paragraph 8 of the 2007 Notes. The number of shares of Common Stock issuable
upon conversion of a 2007 Note per $1,000 of principal amount thereof (the
"Conversion Rate") shall be that set forth in Paragraph 8 of the 2007 Notes,
subject to adjustment as herein set forth. The Company shall notify the Trustee
of the date on which the 2007 Notes first become convertible, which certificate
shall set forth the calculations on which such determination was made.
A Holder may convert a portion of the principal amount of a 2007 Note if
the portion converted is in a $1,000 principal amount or an integral multiple of
$1,000. Provisions of this First Supplemental Indenture that apply to conversion
of all of a 2007 Note also apply to conversion of a portion of a 2007 Note.
In the event that the Ex-Dividend Time (as defined below) (or in the case
of a subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 9.06(1), (2), (3) or (4) applies occurs during
the period applicable for calculating "Average Sale Price" pursuant to the
definition in Section 9.07, "Average Sale Price" shall be calculated for such
period in a manner determined by the Board of Directors to reflect the impact of
such dividend, subdivision, combination or reclassification on the Sale Price of
the shares of Common Stock during such period.
24
"Time of Determination" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options or
a distribution, in each case, to which Section 9.07 or 9.08 applies and (ii) the
time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend"
trading for such rights, warrants or options or distribution on the NYSE or such
other U.S. national or regional exchange or market on which the shares of Common
Stock are then listed or quoted.
SECTION 9.02 Conversion Procedure. To convert a 2007 Note a Holder must
satisfy the requirements in Paragraph 8 of the 2007 Notes. The first Business
Day on which the Holder satisfies all those requirements and submits such
Holder's 2007 Notes for conversion is the conversion date (the "Conversion
Date").
As soon as practicable after the Conversion Date, the Company shall deliver
to the Holder, through the Conversion Agent, a certificate for the number of
full shares of Common Stock issuable upon the conversion or exchange and cash in
lieu of any fractional share determined pursuant to Section 9.03. The person in
whose name the certificate is registered shall be treated as a shareholder of
record as of the close of business on the Conversion Date. Upon conversion of a
2007 Note in its entirety, such person shall no longer be a Holder of such 2007
Note.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any shares of Common Stock except as provided in
this Article IX. On conversion of a 2007 Note, except as provided below with
respect to cash interest payable on 2007 Notes or portions thereof converted
after a Regular Record Date and those called for redemption, that portion of
accrued and unpaid cash interest on the converted 2007 Notes attributable to the
period from the most recent Interest Payment Date through the Conversion Date
shall not be cancelled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through delivery of the shares of Common
Stock (together with the cash payment, if any, in lieu of fractional shares) for
the 2007 Note being converted pursuant to the provisions hereof. The Company
will not adjust the conversion rate to account for accrued interest, if any. If
the Holder converts more than one 2007 Note at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the total
principal amount of the 2007 Notes converted.
The 2007 Notes or portions thereof surrendered for conversion during the
period from the close of business on any date on which cash interest accrues to
the opening of business on the date on which such cash interest is payable shall
(unless such 2007 Notes or portions thereof have been called for redemption on a
Redemption Date within such period) be accompanied by payment to the Company or
its order, in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the cash interest payable on such cash interest
payment date on the principal amount of the 2007 Notes or portions thereof being
surrendered for conversion.
If the last day on which a 2007 Note may be converted is a Legal Holiday,
the 2007 Note may be surrendered on the next succeeding day that is not a Legal
Holiday.
25
Upon surrender of a 2007 Note that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
2007 Note in an authorized denomination equal in principal amount to the
unconverted portion of the 2007 Note surrendered.
SECTION 9.03 Fractional Shares. The Company will not issue fractional
shares of Common Stock upon conversion of a 2007 Note. Instead, the Company will
pay cash based on the current market value for all fractional shares. The
current market value of a fractional share shall be determined, to the nearest
1/1,000th of a share, by multiplying the Sale Price on the last trading day
immediately prior to the Conversion Date, of a full share of Common Stock by the
fractional amount and rounding the product to the nearest whole cent. It is
understood that if a Holder elects to have more than one 2007 Note converted,
the number of shares of Common Stock shall be based on the aggregate principal
amount of 2007 Notes to be converted.
SECTION 9.04 Taxes on Conversion. If a Holder submits a 2007 Note for
conversion, the Company shall pay all stamp and all other duties, if any, which
may be imposed by the United States or any political subdivision thereof or
taxing authority thereof or therein with respect to the issuance of shares of
Common Stock upon the conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulations.
SECTION 9.05 Company to Provide Stock. The Company shall, prior to issuance
of any 2007 Notes under this Article IX, and from time to time as may be
necessary, reserve out of its authorized but unissued shares of Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the 2007
Notes.
All shares of Common Stock delivered upon conversion of the 2007 Notes
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim. The Company will endeavor promptly
to comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of 2007 Notes, if any, and
will list or cause to have quoted such shares of Common Stock on each national
securities exchange or in the over-the-counter market or such other market on
which the shares of Common Stock are then listed or quoted.
SECTION 9.06 Adjustment for Change in Capital Stock.
If, after the Issue Date of the 2007 Notes, the Company:
(1) pays a dividend or makes another distribution to all holders of
the its Common Stock payable exclusively in shares of its Common Stock;
(2) subdivides the outstanding shares of its Common Stock into a
greater number of shares of Common Stock;
26
(3) combines the outstanding shares of its Common Stock into a
smaller number of shares of Common Stock; or
(4) issues by reclassification of its Common Stock any shares of
Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a 2007 Note
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the 2007 Note immediately prior to the record date for
such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a 2007 Note upon conversion of such 2007
Note may receive shares of two or more classes of Capital Stock of the Company,
the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article IX with respect to the shares of Common Stock,
on terms comparable to those applicable to shares of Common Stock in this
Article IX.
SECTION 9.07 Adjustment for Rights Issue
Except as provided in Section 9.11, if after the Issue Date of the 2007
Notes, the Company distributes any rights or warrants to all holders of shares
of its Common Stock entitling them to purchase, for a period expiring within 60
days, shares of Common Stock at a price per share less than the Average Sale
Price as of the Time of Determination, unless the Securityholders may
participate in the distribution without conversion on a basis and with the
notice that the Company's Board of Directors determines to be fair and
appropriate, the Conversion Rate shall be adjusted in accordance with the
formula:
R' = R x (O + N)
-------------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on
the record date for the distribution to which this
Section 9.07 is being applied.
N = the number of additional shares of Common Stock
offered pursuant to the distribution.
27
P = the offering price per share of the additional
shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 9.06(4) applies or (ii)
a distribution to which Section 9.08 applies, for
which, in each case, (x) the record date shall occur
on or before the record date for the distribution to
which this Section 9.07 applies and (y) the
Ex-Dividend Time shall occur on or after the date of
the Time of Determination for the distribution to
which this Section 9.07 applies, the fair market
value (on the record date for the distribution to
which this Section 9.07 applies) of the
(1) Capital Stock of the Company distributed in respect of
each share of Common Stock in such Section 9.06(4)
distribution and
(2) the Company's debt, securities or assets or certain
rights, warrants or options to purchase securities of
the Company distributed in respect of each share of
Common Stock in such Section 9.08 distribution.
The Board of Directors of the Company shall determine fair market values
for the purposes of this Section 9.07.
"Average Sale Price" means the average of the Sale Prices of the shares of
Common Stock for the shorter of:
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Sale Price is being
calculated;
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Sale
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Sale Price is
being calculated (excluding days within such period, if any, which are not
trading days); or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, warrants or options or (b) distribution, in each case, for which an
adjustment is required by the provisions of Section 9.07, 9.08 or 9.09 and
(y) proceeding through the last full trading day prior to the Time of
Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Sale Price is being calculated
(excluding days within such period, if any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, or combination or reclassification to which
Section 9.06(1), (2), (3) or (4) applies occurs during the period applicable for
28
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors of the Company to reflect the impact of
such dividend, subdivision, combination or reclassification on the Sale Price of
the shares of Common Stock during such period.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the rights, warrants or
options to which this Section 9.07 applies. If all of the shares of Common Stock
subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 9.07 if the application of
the formula stated above in this Section 9.07 would result in a value of R' that
is equal to or less than the value of R.
SECTION 9.08 Adjustment for Other Distributions
(a) Except as provided in Section 9.11, if, after the Issue Date of the
2007 Notes, the Company distributes to all holders of its shares of Common Stock
any of its debt, securities or assets, excluding distributions of Capital Stock
or equity interests referred to in Section 9.08(b), or any rights, warrants or
options to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 9.06 and
distributions of rights, warrants or options referred to in Section 9.07 and (y)
payments made to redeem rights issued under any present or future rights
agreement of the Company and (z) cash dividends or other cash distributions that
do not exceed the per share amount of the immediately preceding regular cash
dividend on the Common Stock and other cash dividends or distributions unless
such other cash dividends or cash distributions are Extraordinary Cash
Dividends) and unless the Holders of 2007 Notes may participate in the
distribution without conversion, the Conversion Rate shall be adjusted, subject
to the provisions of Section 9.08(c), in accordance with the formula:
R' = R x M
-----
(M - F)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price
F = the fair market value (on the record date for the
distribution to which this Section 9.08(a) applies)
of the assets, securities, rights, warrants or
options to be distributed in respect of each share of
Common Stock in the distribution to which this
29
Section 9.08(a) is being applied (including, in the
case of cash dividends or other cash distributions
giving rise to an adjustment, all such cash
distributed concurrently).
For purposes of this Section 9.08(a), the term "Extraordinary Cash
Dividend" shall mean all all-cash distributions to all or substantially all
holders of the Company's Common Stock made within the 365 days preceding the
Time of Determination (or the period from July 8, 2002 to the Time of
Determination if such period is shorter than 365 days) not triggering a
Conversion Rate adjustment (other than payments made to redeem rights issued
under any present or future rights agreement of the Company and cash dividends
or other cash distributions that do not exceed the per share amount of the
immediately preceding regular cash dividend on the Common Stock), to the extent
such aggregate amount exceeds an amount equal to 12.5% of the Sale Price of the
Company's Common Stock on the Business Day immediately preceding the day on
which the Company declares the distribution times the number of shares of Common
Stock outstanding on such day.
If, upon the date prior to the Ex-Dividend Time with respect to a cash
dividend on the shares of Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends and distributions
referred to in the definition of Extraordinary Cash Dividend gives rise to an
adjustment of the Conversion Rate, then such cash dividend together with all
such other cash dividends and distributions shall, for purposes of applying the
formula set forth above in this Section 9.08(a), cause the value of "F" to equal
(y) the aggregate amount of such cash dividend and other cash dividends and
distributions, minus (z) the aggregate amount of all cash dividends or other
cash distributions during the preceding 365 days for which an adjustment in the
Conversion Rate was previously made.
(b) If, after the Issue Date of the 2007 Notes, the Company pays a dividend
or makes a distribution to all holders of its Common Stock consisting of Capital
Stock of any class or series, or similar equity interests, of or relating to a
Subsidiary or other business unit of the Company, the Conversion Rate shall be
adjusted in accordance with the formula:
R' = R x (1 + F/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the average of the Post-Distribution Prices of the
Common Stock for the 10 trading days commencing on
and including the fifth trading day after the date on
which "ex-dividend trading" commences for such
dividend or distribution on the principal United
States exchange or market which such securities are
then listed or quoted (the "Ex-Dividend Date").
F = the fair market value of the securities distributed
in respect of each share of Common Stock in the
distribution to which this Section 9.08(b) applies,
30
which shall be determined by multiplying the number
of securities so distributed in respect of each share
of Common Stock by the average of the
Post-Distribution Prices of those securities for the
10 trading days commencing on and including the fifth
trading day after the Ex-Dividend Date.
"Post-Distribution Price" of Capital Stock or any similar equity interest
on any date means the closing per unit sale price (or, if no closing per unit
sale price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average ask prices)
on such date for trading of such units on a "when issued" basis without due
bills (or similar concept) as reported in the composite transactions for the
principal United States securities exchange on which such Capital Stock or
equity interest is traded or, if the Capital Stock or equity interest, as the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the Nasdaq System or by the National Quotation Bureau
Incorporated; provided that if on any date such units have not traded on a "when
issued" basis, the Post-Distribution Price shall be the closing per unit sale
price (or, if no closing per unit sale price is reported, the average of the bid
and ask prices per unit or, if more than one in either case, the average of the
average bid and the average ask prices per unit) on such date for trading of
such units on a "regular way" basis without due bills (or similar concept) as
reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is traded or,
if the Capital Stock or equity interest, as the case may be, is not listed on a
United States national or regional securities exchange, as reported by the
Nasdaq System or by the National Quotation Bureau Incorporated. In the absence
of such quotation, the Company shall be entitled to determine the
Post-Distribution Price on the basis of such quotations which reflect the
post-distribution value of the Capital Stock or equity interests as it considers
appropriate.
(c) In the event that, with respect to any distribution to which Section
9.08(a) would otherwise apply, the difference "M-F" as defined in the formula
set forth in Section 9.08(a) is less than $1.00 or "F" is equal to or greater
than "M", then the adjustment provided by Section 9.08(a) shall not be made and
in lieu thereof the provisions of Section 9.15 shall apply to such distribution.
SECTION 9.09 Adjustment for Self Tender Offer. If, after the Issue Date of
the 2007 Notes, the Company or any Subsidiary of the Company pays holders of the
Company's Common Stock in respect of a tender or exchange offer, other than an
odd-lot offer, by the Company or any of its Subsidiaries for the Company's
Common Stock consideration per share of Common Stock having a fair market value,
as determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive, in excess of 110% of the Sale Price of the
Common Stock as of the first Business Day (the "Measurement Date") next
succeeding the last Business Day tenders or exchanges may be made pursuant to
the offer (the "Expiration Time"), the Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate
in effect immediately prior to the effectiveness of the Conversion Rate
adjustment contemplated by this Section 9.09 by a fraction, the numerator of
which shall be the sum of (x) the fair market value of the aggregate
consideration payable to stockholders based on the acceptance of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time up to
the maximum specified in the tender or exchange offer (the "Purchased Shares")
and (y) the product of the number of shares of Common Stock outstanding (less
31
any Purchased Shares) at the Expiration Time and the Sale Price of a share of
Common Stock on the Measurement Date, and the denominator of which shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time (including the Purchased Shares)
multiplied by the Sale Price of one share of Common Stock on the Measurement
Date. Such reduction shall become effective immediately prior to the opening of
business on the day following the Measurement Date.
SECTION 9.10 When Adjustment May Be Deferred. No adjustment in the
Conversion Rate under Section 9.06, 9.07, 9.08 or 9.09 need be made unless the
adjustment, as determined by the Company, would require an increase or decrease
of at least 1% in the Conversion Rate. Any adjustments that are not made
pursuant to this Section 9.10 shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Article IX shall be made to the nearest cent or
to the nearest 1/1,000th of a share, as the case may be.
SECTION 9.11 When No Adjustment Required. No adjustment to the Conversion
Rate need be made as a result of:
(1) (i) the issuance of the rights; (ii) the distribution of separate
certificates representing the rights; (iii) the exercise or redemption of the
rights in accordance with any rights agreement; or (iv) the termination or
invalidation of the rights, in each case, pursuant to the Company's existing
stockholders rights plan, as amended, modified, or supplemented from time to
time or any newly adopted stockholders rights plans;
(2) upon the issuance of any shares of Common Stock pursuant to any present
or future plan providing for the reinvestment of dividends or interest payable
on securities of the Company and the investment of additional optional amounts
in shares of Common Stock under any plan;
(3) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries; or
(4) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding
as of the date the 2007 Notes were first issued.
To the extent the 2007 Notes become convertible pursuant to this Article IX
in whole or in part into cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
SECTION 9.12 Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Holders a notice of the adjustment.
The Company shall file with the Trustee and the Conversion Agent such notice
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
32
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
SECTION 9.13 Voluntary Increase. The Company from time to time may increase
the Conversion Rate by any amount at any time for at least 20 days, so long as
the increase is irrevocable during such period. Whenever the Conversion Rate is
so increased, the Company shall mail to Securityholders and file with the
Trustee and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect. A voluntary increase of the Conversion Rate does
not change or adjust the Conversion Rate otherwise in effect for purposes of
Section 9.06, 9.07 or 9.08.
SECTION 9.14 Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 9.06, 9.07, 9.08 or 9.09 (unless no
adjustment is to occur pursuant to Section 9.11); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 9.15; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Holders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend,
distribution or subdivision or the proposed effective date of a combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 9.15 Reorganization of Company; Special Distributions. If the
Company is a party to a transaction subject to Section 5.01 (other than a sale
of all or substantially all of the assets of the Company in a transaction in
which the holders of shares of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or
any other person) or a merger or binding share exchange which reclassifies or
changes its outstanding shares of Common Stock, the person obligated to deliver
securities, cash or other assets upon conversion of 2007 Notes shall enter into
a supplemental indenture. If the issuer of securities deliverable upon
conversion of 2007 Notes is an Affiliate of the successor Company, that issuer
shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a 2007 Note may
convert it into the kind and amount of securities, cash or other assets which
such Holder would have received immediately after the consolidation, merger,
binding share exchange or transfer if such Holder had converted the 2007 Note
immediately before the effective date of the transaction, assuming (to the
extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of non-
electing Holders. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
33
for in this Article IX. The successor Company shall mail to Securityholders a
notice briefly describing the supplemental indenture.
If this Section applies, neither Section 9.06 nor 9.07 applies.
If the Company makes a distribution to all holders of its shares of Common
Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
the last paragraph of Section 9.08, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 9.08, then, from and
after the record date for determining the holders of shares of Common Stock
entitled to receive the distribution, a Holder of a 2007 Note that converts such
2007 Note in accordance with the provisions of this First Supplemental Indenture
shall upon such conversion be entitled to receive, in addition to the shares of
Common Stock into which the 2007 Note is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the 2007 Note immediately prior
to the record date for determining the holders of shares of Common Stock
entitled to receive the distribution.
SECTION 9.16 Company Determination Final. Any determination that the
Company or the Board of Directors makes pursuant to Section 9.03, 9.06, 9.07,
9.08, 9.09, 9.10, 9.11, 9.15 or 9.17 is conclusive, absent manifest error.
SECTION 9.17 Trustee's Adjustment Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article IX should be made, how it should
be made or what it should be. The Trustee has no duty to determine whether a
supplemental indenture under Section 9.15 need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall not be
accountable for and makes no representation as to the validity or value of any
securities or assets issued upon conversion of the 2007 Notes. The Trustee shall
not be responsible for the Company's failure to comply with this Article IX.
Each Conversion Agent shall have the same protection under this Section 9.17 as
the Trustee. All calculations required under Article IX shall be performed by
the Company, with notice thereof to the Trustee.
SECTION 9.18 Simultaneous Adjustments. In the event that this Article IX
requires adjustments to the Conversion Rate under more than one of Sections
9.06(4), 9.07 or 9.08, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 9.06, second, the provisions
of Section 9.08 and, third, the provisions of Section 9.07.
SECTION 9.19 Successive Adjustments. After an adjustment to the Conversion
Rate under this Article IX, any subsequent event requiring an adjustment under
this Article IX shall cause an adjustment to the Conversion Rate as so adjusted.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Recitals by Company. The recitals in this First Supplemental
Indenture are made by the Company and not by the Trustee, and all of the
34
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of 2007 Notes and of this First Supplemental Indenture as fully and with
like effect as if set forth herein in full.
SECTION 10.02 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:
Mirant Corporation.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Facsimile No. (000) 000-0000
if to the Trustee:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank Services New Jersey, Inc.
000 Xxxxx Xxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Manager, Project Finance Group
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 Security
Register 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 Security Registrar, Paying Agent,
Conversion Agent or co-registrar.
35
SECTION 10.03 Provisions of Original Indenture Not Applicable. The
provisions of Article Four and Article Twelve of the Original Indenture shall
not apply to the 2007 Notes.
SECTION 10.04 Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 10.05 Executed in Counterparts. This First Supplemental Indenture
may be simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 10.06 Communication by Holders with Other Holders. Securityholders
may communicate pursuant to Trust Indenture Act Section 312(b) with other
Securityholders with respect to their rights under this First Supplemental
Indenture or the 2007 Notes. The Company, the Trustee, the Security Registrar,
the Paying Agent, the Conversion Agent and anyone else shall have the protection
of Trust Indenture Act Section 312(c).
SECTION 10.07 Rules by Trustee, Paying Agent, Conversion Agent and Security
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Security Registrar, the Conversion Agent and the Paying
Agent may make reasonable rules for their functions.
SECTION 10.08 GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE AND EACH
2007 NOTE ISSUED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
36
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
MIRANT CORPORATION
By:
-----------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:
-----------------------------------------------
Name:
Title:
37
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.
1
MIRANT CORPORATION
5.75% Convertible Senior Notes due 2007
No. CUSIP: 000000XX0
Issue Date: July 8, 2002
Issue Price: 100% of principal amount
MIRANT CORPORATION, a Delaware corporation, promises to pay to Cede & Co.
or registered assigns, the principal amount of [__________________]
($___________) on July 15, 2007.
This Security shall bear interest at a rate of 5.75% per year except as
specified on the other side of this Security. This Security is convertible as
specified on the other side of this Security.
2
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: MIRANT CORPORATION
By: __________________________________
Name:
Title:
[Seal]
Attest: _____________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee, certifies that this is one of
the Securities of the series designated herein referred to in the
within-mentioned Indenture.
By __________________________________
Authorized Signatory
Dated:
3
[FORM OF REVERSE OF GLOBAL SECURITY]
5.75% Convertible Senior Notes due 2007
1. Interest.
Except as provided below, this Security shall bear interest at
a rate of 5.75% per year from July 8, 2002 or from the most recent Interest
Payment Date (as defined below) to which payment has been paid or duly provided
for, payable semiannually in arrears on January 15 and July 15 of each year
(each an "Interest Payment Date") to the persons in whose names the Securities
are registered at the close of business on January 1 and July 1 (each a "Regular
Record Date") (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest on the Securities will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Cash interest on Securities converted after a record date, but
prior to the corresponding Interest Payment Date, will be paid to the Holder of
the Securities on the Regular Record Date but, upon conversion, the Holder must
pay the Company the cash interest which has accrued and will be paid on such
Interest Payment Date. No such payment needs to be made with respect to
Securities that will be redeemed after a Regular Record Date and prior to the
corresponding Interest Payment Date.
If the principal amount of a Security, plus accrued and unpaid
interest or any portion thereof, is not paid when due (whether upon acceleration
pursuant to Section 6.02 of the First Supplemental Indenture (as defined below),
upon the date set for payment of the Redemption Price pursuant to Paragraph 5
hereof, upon the date set for payment of the Fundamental Change Purchase Price
pursuant to Paragraph 6 hereof, or upon the Stated Maturity of this Security),
then, in each such case, the overdue amount shall, to the extent permitted by
law, bear interest at a rate of 5.75% per year, compounded semi-annually, which
interest shall accrue from the date such overdue amount was originally due to
the date of payment of such amount, including interest thereon, has been made or
duly provided for. All such interest shall be payable on demand and shall be
based on a 360-day year comprised of twelve 30-day months.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the
Company will make payments in cash in respect of Redemption Prices, Fundamental
Change Purchase Prices and at Stated Maturity to Holders who surrender
Securities to the 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. Paying Agent, Conversion Agent and Security Registrar.
Initially, Deutsche Bank Trust Company Americas (the
"Trustee") will act as Paying Agent, Conversion Agent and Security Registrar.
The Company may appoint and change any Paying Agent, Conversion Agent or
Security Registrar without notice, other than notice to the Trustee; provided
that the Company will maintain at least one Paying Agent in the State of New
York, City of New York, Borough of Manhattan, which shall initially be an office
or agency of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent or Security Registrar.
4. Indenture.
This Security is one of a duly authorized issue of Senior
Notes of the Company (the "Securities") issued and issuable in one or more
series under an Indenture, dated as of July 8, 2002, as supplemented by the
First Supplemental Indenture (the "First Supplemental Indenture") dated as of
July 8, 2002 (collectively, the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect from time to time (the "TIA"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms. To the extent any
provisions of this Security and the Indenture conflict, the provisions of the
Indenture shall control.
The Securities are senior unsecured obligations of the Company
limited to $425,500,000 aggregate principal amount subject to increase as
provided for in the Indenture. The Indenture does not limit other indebtedness
of the Company, secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities
are redeemable at the option of the Company in whole or in part, at any time or
from time to time, on or after July 20, 2005 upon not less than 30 nor more than
60 days' notice by mail for a cash price equal to 100% of the principal amount
of the Securities to be redeemed plus accrued and unpaid cash interest, if any,
to the Redemption Date (the "Redemption Price").
6. Purchase By the Company at the Option of the Holder.
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 45 days after the date of such offer) after the occurrence of a
Fundamental Change for a Fundamental Change Purchase Price equal to 100% of the
principal amount of the Securities to be redeemed plus accrued and unpaid cash
interest, if any, to the Fundamental Change Purchase Date, which Fundamental
Change Purchase Price shall be paid in cash.
Holders have the right to withdraw any Fundamental Change
Purchase Notice by delivering to the Paying Agent a written notice of withdrawal
in accordance with the provisions of the Indenture.
If cash sufficient to pay the Fundamental Change Purchase
Price of all Securities or portions thereof to be purchased on the Fundamental
Change Purchase Date is deposited with the Paying Agent on the Business Day
following the Fundamental Change Purchase Date, interest ceases to accrue on
2
such Securities or portions thereof immediately after such Fundamental Change
Purchase Date, and the Holder thereof shall have no other rights as such other
than the right to receive the Fundamental Change Purchase Price upon surrender
of such Security.
7. Notice of Redemption.
Notice of redemption pursuant to Paragraph 5 of this Security
will be mailed at least 30 days but not more than 60 days before the Redemption
Date to each Holder of Securities to be redeemed at the Holder's registered
address. If money sufficient to pay the Redemption Price of all Securities or
portions thereof to be redeemed on the Redemption Date is deposited with the
Paying Agent prior to or on the Redemption Date, interest ceases to accrue on
such Securities or portions thereof immediately after such Redemption Date.
Securities in denominations larger than $1,000 of principal amount may be
redeemed in part but only in integral multiples of $1,000 of principal amount.
8. Conversion.
A Holder of a Security may convert it into Common Stock at any
time before the close of business on July 14, 2007. A Holder may also surrender
for conversion a Security or portion of a Security which has been called for
redemption pursuant to Paragraph 5 hereof, and such Securities may be
surrendered for conversion until the close of business on the day that is two
Business Days prior to the Redemption Date.
In the event that the Conversion Rate must be adjusted because
the Company declares a dividend or distribution described in Section 9.07 of the
First Supplemental Indenture or a dividend or a distribution described in
Section 9.08(a) of the First Supplemental Indenture where the fair market value
of such dividend or distribution per share of Common Stock, as determined in the
Indenture, exceeds 12.5% of the Sale Price of a share of Common Stock as of the
Business Day prior to the date of declaration for such distribution, unless the
Holder may participate in this distribution without conversion, the Securities
may be surrendered for conversion beginning on the date 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 dividend or distribution and the Securities may be
surrendered for conversion at any time thereafter until the close of business on
the Business Day prior to the Ex-Dividend Time or until the Company announces
that such distribution will not take place.
Finally, in the event the Company is a party to a
consolidation, merger or 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 9.15 of the First Supplemental Indenture, the Securities may be
surrendered for conversion at any time from and after the date which is 15 days
prior to the date the Company announces as the anticipated effective time until
15 days after the actual date of such transaction.
A Security in respect of which a Holder has delivered a
Fundamental Change Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
3
The initial Conversion Rate is 131.9888 shares of Common Stock
per $1,000 principal amount of Securities, subject to adjustment in certain
events described in the First Supplemental Indenture. A Holder that surrenders
Securities for conversion will receive cash or a check in lieu of any fractional
shares of Common Stock.
To surrender a Security for conversion, a Holder must (1)
complete and manually sign the irrevocable conversion notice below (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.
A Holder may convert a portion of a Security if the principal
amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the shares of Common Stock except as
provided in the Indenture. Except as provided in Paragraph 1 hereof, on
conversion of a Security, the Holder will not receive any cash payment
representing accrued interest with respect to the converted Securities. Instead,
upon conversion the Company will deliver to the Holder a fixed number of shares
of Common Stock and any cash payment to account for fractional shares. Accrued
interest will be deemed paid in full rather than canceled, extinguished or
forfeited. The Company will not adjust the Conversion Rate to account for
accrued interest.
The Conversion Rate will be adjusted as provided in Article IX
of the First Supplemental Indenture. The Company may increase the Conversion
Rate for at least 20 days, so long as the increase is irrevocable during such
period.
If the Company is a party to a consolidation, merger or
binding share exchange or a transfer of all or substantially all of its assets,
or upon certain distributions described in the Indenture, then at the effective
time of the transaction 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 another person.
9. Conversion Arrangement on Call for Redemption
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the day that is two Business Days
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. 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 the Securities in accordance with the
Indenture. The Security 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 Security Registrar need
not transfer or exchange any Securities selected for redemption (except, in the
4
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 Fundamental Change 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.
11. Persons Deemed Owners.
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
12. 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.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee
may amend the Indenture or the Securities so long as such changes, other than
those in clause (ii) below, do not materially and adversely affect the interest
of the Holders, among other things, (i) to cure any ambiguity, omission, defect
or inconsistency, provided that such modification or amendment does not in the
good faith opinion of the Company's Board of Directors (as communicated in
writing to the Trustee) adversely affect the interests of the holders of the
Securities in any material respect, (ii) to comply with Article V or Section
9.14 of the First Supplemental Indenture, (iii) to secure the Company's
obligations or to add any guarantee under the Securities and the Indenture; (iv)
to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred upon the Company, (v) to make any change
necessary for the registration of the Securities under the Securities Act or to
comply with the TIA, or any amendment thereto, or to comply with any requirement
of the Commission in connection with the qualification of the Indenture under
the TIA, provided that such modification or amendment does not, in the good
faith opinion of the Company's Board of Directors (as communicated in writing to
the Trustee), adversely affect the interests of the holders of the Securities in
any material respect, (vi) to provide for uncertificated Securities in addition
to or in place of certificated Securities or to provide for bearer Securities or
(vii) to make any modifications or amendments that do not, in the good faith
opinion of the Company's Board of Directors (as communicated in writing to the
Trustee), adversely affect the interests of the Holders of the Securities in any
material respect.
5
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in
payment of the principal amount of the Securities plus accrued and unpaid
interest when the same becomes due and payable at Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or otherwise,
(ii) default in the payment of any cash interest, when due and payable, subject
to lapse of time, (iii) failure by the Company to comply in any material respect
with other agreements or covenants in the Indenture or the Securities, subject
to notice and lapse of time; (iv) failure by the Company to deliver shares of
Common Stock upon the election by the Holders to convert their Securities,
subject to lapse of time; and (v) certain events of bankruptcy, insolvency and
reorganization of the Company.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security satisfactory to it.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from the Holders notice
of any continuing Default (except a Default in payment of amounts specified in
clause (ii) above) if it determines that withholding notice is in their
interests.
15. 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 the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. Calculations in Respect of Securities.
The Company will be responsible for making all calculations
called for under the Securities. These calculations include, but are not limited
to, determination of the market prices for the Common Stock and accrued interest
payable 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 will be required to deliver to the Trustee a schedule of its
calculations and the Trustee will be entitled to rely upon the accuracy of such
calculations without independent verification. The Trustee will forward the
Company's calculations to any Holder of the Securities upon the request of such
Holder.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or the Trustee 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 Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
6
18. Authentication.
This Security shall not be valid until an authorized signatory
of the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
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).
20. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS SECURITY.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture which has in it the text of this
Security. Requests may be made to:
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the form below: To convert this Security into Common Stock
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
_________________________ (which must be $1,000 or an integral
(Insert assignee's soc. sec. or tax ID no.) multiple of $1,000):
-------------------------
_________________________ If you want the stock certificate made out
_________________________ in another person's name fill in the form
(Print or type assignee's name, address and zip below:
code) _________________________
and irrevocably appoint (Insert the other person's soc. sec. tax
ID no.)
____________________ agent to transfer this
7
Security on the books of the Company. The __________________________
agent may substitute another to act for him. __________________________
(Print or type other person's name,
address and zip code)
Date: __________ Your Signature: _________________________________
----------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
8
