Exhibit 4.1
EXECUTION COPY
XXXXX XXXXX MANAGEMENT
Liquid Yield Option(TM) Notes
due 2031
$235,000,000
(Zero Coupon-Senior)
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INDENTURE
Dated August 13, 2001
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The Chase Manhattan Bank
TRUSTEE
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(TM)Trademark of Xxxxxxx Xxxxx & Co., Inc.
CROSS REFERENCE TABLE*
IA Section................................................. Indenture Section
310(a)(1) ................................................. 7.10
(a)(2) .................................................... 7.10
(a)(3) .................................................... N.A.
(a)(4) .................................................... N.A.
(b) ....................................................... 7.08; 7.10
(c)........................................................ N.A.
311(a)..................................................... 7.11
(b) ....................................................... 7.11
(c)........................................................ N.A.
312(a)..................................................... 2.05
(b) ....................................................... 13.03
(c)........................................................ 13.03
313(a)..................................................... 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 13.02
(d) ....................................................... 7.06
314(a)..................................................... 4.02; 4.03; 13.02
(b) ....................................................... N.A.
(c)(1) .................................................... 13.04
(c)(2) .................................................... 13.04
(c)(3) .................................................... N.A.
(d) ....................................................... N.A.
(e)........................................................ 13.05
(f) ....................................................... N.A.
315(a)..................................................... 7.01
(b) ....................................................... 7.05; 13.02
(c)........................................................ 7.01
(d) ....................................................... 7.01
(e)........................................................ 6.11
316(a) (last sentence)..................................... 2.08
(a)(1)(A) ................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2) .................................................... N.A.
(b) ....................................................... 6.07
317(a)(1) ................................................. 6.08
(a)(2) .................................................... 6.09
(b) ....................................................... 2.04
318(a)..................................................... 13.01
N.A. means Not Applicable.
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* Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
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TABLE OF CONTENTS*
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions....................................................1
SECTION 1.02 Other Definitions..............................................6
SECTION 1.03 [Reserved].....................................................7
SECTION 1.04 Rules of Construction..........................................7
SECTION 1.05 Acts of Holders................................................7
ARTICLE 2 THE SECURITIES
SECTION 2.01 Form and Dating................................................8
SECTION 2.02 Execution and Authentication..................................10
SECTION 2.03 Registrar, Paying Agent, Exchange Agent and
Bid Solicitation Agent........................................11
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust............11
SECTION 2.05 Securityholder Lists..........................................12
SECTION 2.06 Transfer and Exchange.........................................12
SECTION 2.07 Replacement Securities........................................14
SECTION 2.08 Outstanding Securities; Determinations of
Holders' Action...............................................14
SECTION 2.09 Temporary Securities..........................................15
SECTION 2.10 Cancellation..................................................15
SECTION 2.11 Persons Deemed Owners.........................................16
SECTION 2.12 Global Securities.............................................16
SECTION 2.13 CUSIP Numbers.................................................21
ARTICLE 3 REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee...........................21
SECTION 3.02 Selection of Securities to Be Redeemed........................22
SECTION 3.03 Notice of Redemption..........................................22
SECTION 3.04 Effect of Notice of Redemption................................23
SECTION 3.05 Deposit of Redemption Price...................................23
SECTION 3.06 Securities Redeemed in Part...................................24
SECTION 3.07 Exchange Arrangement on Call for Redemption...................24
SECTION 3.08 Purchase of Securities at Option of the Holder................24
SECTION 3.09 Purchase of Securities at Option of the Holder
upon Change in Control........................................31
SECTION 3.10 Effect of Purchase Notice or Change in Control
Purchase Notice...............................................34
SECTION 3.11 Deposit of Purchase Price or Change in Control
Purchase Price................................................36
SECTION 3.12 Securities Purchased in Part..................................36
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* Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
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SECTION 3.13 Covenant to Comply With Securities Laws Upon
Purchase of Securities........................................36
SECTION 3.14 Repayment to the Company......................................36
ARTICLE 4 COVENANTS
SECTION 4.01 Payment of Securities.........................................37
SECTION 4.02 SEC and Other Reports.........................................37
SECTION 4.03 Compliance Certificate........................................38
SECTION 4.04 Further Instruments and Acts..................................38
SECTION 4.05 Maintenance of Office or Agency...............................38
SECTION 4.06 Delivery of Certain Information...............................38
SECTION 4.07 Calculation of Tax Original Issue Discount....................39
ARTICLE 5 SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets.....................39
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.............................................40
SECTION 6.02 Acceleration..................................................42
SECTION 6.03 Other Remedies................................................43
SECTION 6.04 Waiver of Past Defaults.......................................43
SECTION 6.05 Control by Majority...........................................43
SECTION 6.06 Limitation on Suits...........................................43
SECTION 6.07 Rights of Holders to Receive Payment..........................44
SECTION 6.08 Collection Suit by Trustee....................................44
SECTION 6.09 Trustee May File Proofs of Claim..............................44
SECTION 6.10 Priorities....................................................45
SECTION 6.11 Undertaking for Costs.........................................46
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.......................46
ARTICLE 7 TRUSTEE
SECTION 7.01 Duties of Trustee.............................................46
SECTION 7.02 Rights of Trustee.............................................47
SECTION 7.03 Individual Rights of Trustee..................................49
SECTION 7.04 Trustee's Disclaimer..........................................49
SECTION 7.05 Notice of Defaults............................................49
SECTION 7.06 Reports by Trustee to Holders.................................49
SECTION 7.07 Compensation and Indemnity....................................50
SECTION 7.08 Replacement of Trustee........................................51
SECTION 7.09 Successor Trustee by Merger...................................51
SECTION 7.10 Eligibility; Disqualification.................................51
ARTICLE 8 DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities..........................52
SECTION 8.02 Repayment to the Company......................................52
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ARTICLE 9 AMENDMENTS
SECTION 9.01 Without Consent of Holders....................................52
SECTION 9.02 With Consent of Holders.......................................53
SECTION 9.03 [Reserved]....................................................54
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions........54
SECTION 9.05 Notation on or Exchange of Securities.........................54
SECTION 9.06 Trustee to Sign Supplemental Indentures.......................55
SECTION 9.07 Effect of Supplemental Indentures.............................55
ARTICLE 10 SPECIAL TAX EVENT CONVERSION
SECTION 10.01 Optional Conversion to Semiannual Coupon Note Upon
Tax Event.....................................................55
ARTICLE 11 EXCHANGE
SECTION 11.01 Exchange Privilege............................................56
SECTION 11.02 Exchange Procedure............................................57
SECTION 11.03 Fractional Shares.............................................59
SECTION 11.04 Taxes on Exchange.............................................59
SECTION 11.05 Validity of Common Stock......................................59
SECTION 11.06 Adjustment for Change In Capital Stock........................60
SECTION 11.07 Adjustment for Rights Issue...................................60
SECTION 11.08 Adjustment for Other Distributions............................61
SECTION 11.09 When Adjustment May Be Deferred...............................64
SECTION 11.10 When No Adjustment Required...................................64
SECTION 11.11 Notice of Adjustment..........................................65
SECTION 11.12 Voluntary Increase............................................65
SECTION 11.13 Notice of Certain Transactions................................65
SECTION 11.14 Reorganization of Parent; Special Distributions...............65
SECTION 11.15 Company Determination Final...................................66
SECTION 11.16 Trustee's Adjustment Disclaimer...............................66
SECTION 11.17 Simultaneous Adjustments......................................67
SECTION 11.18 Successive Adjustments........................................67
ARTICLE 12 PAYMENT OF INTEREST
SECTION 12.01 Interest Payments.............................................67
SECTION 12.02 Defaulted Interest............................................67
SECTION 12.03 Interest Rights Preserved.....................................68
ARTICLE 13 MISCELLANEOUS
SECTION 13.01 [Reserved]....................................................69
SECTION 13.02 Notices; Address of Agency in Manhattan.......................69
SECTION 13.03 [Reserved]....................................................70
SECTION 13.04 Certificate and Opinion as to Conditions Precedent............70
SECTION 13.05 Statements Required in Certificate or Opinion.................70
SECTION 13.06 Separability Clause...........................................71
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SECTION 13.07 Rules by Trustee, Paying Agent, Exchange Agent
and Registrar.................................................71
SECTION 13.08 Calculations..................................................71
SECTION 13.09 Legal Holidays................................................71
SECTION 13.10 GOVERNING LAW.................................................71
SECTION 13.11 No Recourse Against Others....................................71
SECTION 13.12 Successors....................................................72
SECTION 13.13 Multiple Originals............................................72
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INDENTURE dated as of August 13, 2001 between XXXXX XXXXX MANAGEMENT, a
Massachusetts business trust (the "Company"), and The Chase Manhattan Bank, a
New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Liquid Yield
Option(TM) Notes due 2031 (Zero Coupon-Senior) ("Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"144A Global Security" means a permanent Global Security in the form of
the Security attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Board of Directors" means the board of the Parent or any duly
authorized committee of such board.
"Business Day" means each day of the year other than a Saturday or a
Sunday or other day on which banking institutions in The City of New York are
required or authorized to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-2.
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"Common Stock" shall mean the shares of non-voting common stock,
$0.0078125 par value, of the Parent as it exists on the date of this Indenture
or any other shares of Capital Stock of the Parent into which the Common Stock
shall be reclassified or changed.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers.
"Company Trustee(s)" means either the trustees of the Company or any
duly authorized committee of such trustees, provided that, if at any time there
shall be only one trustee of the Company, "Company Trustee(s)" shall mean such
one Trustee.
"Debt" means with respect to the Company at any date, without
duplication, obligations (other than nonrecourse obligations) for borrowed money
or evidenced by bonds, debentures, notes or similar instruments.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.06, such
Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Institutional Accredited Investor Security" means a Security in the
form of the Security attached hereto as Exhibit A-2, representing Securities
sold to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) and (7) under the Securities Act).
"Institutional Trust Services Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Institutional Trust Services, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Interest Payment Date" means each date specified as such in paragraph
11(c) of the Securities.
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"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"Officer" means the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Treasurer or the Secretary or any Assistant
Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.04 and 13.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.04 and 13.05, from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of, or counsel to, the Company, the
Parent or the Trustee.
"Original Issue Discount" of any Security means the difference between
the Issue Price and the Principal Amount at Maturity of the Security as set
forth on the face of the Security.
"Parent" means Xxxxx Xxxxx Corp., a Maryland corporation and the parent
company which owns the Company as an indirect, wholly owned subsidiary, or its
successors.
"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.
"Principal Amount at Maturity" of a Security means the Principal Amount
at Maturity as set forth on the face of the Security.
"Purchase Date" means each date specified as such in paragraph 7 of the
Securities.
"Purchase Price" means, with respect to any Purchase Date, the
applicable amount specified as such in paragraph 7 of the Securities.
"Redemption Date" or "Redemption date" means the date specified for
redemption of the Securities in accordance with the terms of the Securities and
this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 6 of the Securities.
3
"Registration Rights Agreement" means the registration rights
agreement, dated as of August 13, 2001, among the Company, the Parent and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Regular Record Date" means, with respect to any Interest Payment Date,
the date specified in paragraph 11(c) of the Securities.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Security" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A-1 and A-2 of
this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Liquid Yield Option Notes due
2031 (Zero Coupon-Senior), as amended or supplemented from time to time, issued
under this Indenture.
"Securityholder" or "Holder" means a person in whose name a Security is
registered on the Registrar's books.
"Significant Subsidiary" means a "significant subsidiary", as such term
is defined in Rule 1-02 of Regulation S-X under the Securities Act of 1933, as
amended.
"Special Record Date" means for the payment of any Defaulted Interest,
the date fixed by the Trustee pursuant to Section 12.02.
"Stated Maturity", when used with respect to any Security or any
installment of semiannual or contingent interest thereon, means the date
specified in such Security as the fixed date on which an amount equal to the
Principal Amount at Maturity of such Security or such installment of semiannual
or contingent interest is due and payable.
"Subsidiary" means (i) a corporation, a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is, at the
date of determination, directly or indirectly owned by either the Company or
Parent, as the case may be, by one or more Subsidiaries of the Company or
Parent, as the case may be, or by the Company or Parent, as the case may be, and
one or more Subsidiaries of the Company or Parent, as the case may be, (ii) a
partnership in which the Company or Parent, as the case may be, or a Subsidiary
of the Company or Parent, as the case may be, holds a majority interest in the
equity capital or profits of such
4
partnership, or (iii) any other person (other than a corporation or a
partnership) in which the Company or Parent, as the case may be, a Subsidiary of
the Company or Parent, as the case may be, or the Company or Parent, as the case
may be, and one or more Subsidiaries of the Company or Parent, as the case may
be, directly or indirectly, at the date of determination, has (x) at least a
majority ownership interest or (y) the power to elect or direct the election of
a majority of the directors or trustees, as the case may be, or other governing
body of such person.
"Tax Event" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after August 7, 2001, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
of such laws or regulations by any legislative body, court, governmental agency
or regulatory authority, in each case which amendment or change is enacted,
promulgated, issued or announced or which interpretation is issued or announced
or which action is taken, on or after August 7, 2001, there is more than an
insubstantial risk that amounts that are treated by the Company as interest on
the Securities for United States federal income tax purposes, including amounts
that are so treated based on the comparable yield and the projected payment
schedule set forth in Annex C hereof and any "net positive adjustments," as
defined in Treasury Regulation Section 1.1275-4(b)(6), resulting from interest
payable on the Securities pursuant to Article 12 hereof and from amounts of
liquidated damages payable pursuant to the Registration Rights Agreement (but
excluding any other net positive adjustments), either (i) would not be
deductible on a current accrual basis or (ii) would not be deductible under any
other method, in either case in whole or in part, by the Company (by reason of
deferral, disallowance, or otherwise) for United States federal income tax
purposes.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then 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.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Voting Stock" means, with respect to any corporation, association,
company or business trust, stock or other securities of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such corporation,
association, company or business trust, provided that, for the purposes hereof,
stock or other securities which carry only the right to vote conditionally on
the happening of an event shall not be considered Voting Stock whether or not
such event shall have happened.
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SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Act" 1.05(a)
"Agent Members" 2.12(e)
"Associate" 3.09(a)
"Average Sale Price" 11.01
"Bankruptcy Law" 6.01
"beneficial owner" 3.09(a)
"Bid Solicitation Agent" 2.03
"cash" 3.08(b)
"Change in Control" 3.09(a)
"Change in Control Purchase Date" 3.09(a)
"Change in Control Purchase Notice" 3.09(c)
"Change in Control Purchase Price" 3.09(a)
"Company Notice" 3.08(e)
"Company Notice Date" 3.08(c)
"Custodian" 6.01
"Defaulted Interest" 12.03
"Depositary" 2.01(a)
"DTC" 2.01(a)
"Event of Default" 6.01
"Exchange Act" 3.08(d)
"Exchange Agent" 2.03
"Exchange Date" 11.02
"Exchange Rate" 11.01
"Ex-Dividend Date" 11.08(b)
"Ex-Dividend Time" 11.01
"Extraordinary Cash Dividend" 11.08
"Institutional Accredited Investors" 2.01(b)
"Legal Holiday" 13.08
"Legend" 2.06(f)
"LYON Market Price" Exhibit A-1
"Market Price" 3.08(d)
"Measurement Period" 11.08(a)
"noncontingent bond method" 4.07
"Notice of Default" 6.01
"Option Exercise Date" 10.01
"Paying Agent" 2.03
"Post-Distribution Price" 11.08(b)
"Purchase Notice" 3.08(a)
"QIB" 2.01(a)
"Registrar" 2.03
"Regular Record Date" 10.01
"Relevant Cash Dividends" 11.08(a)
6
"Restated Principal Amount" 10.01
"Rights" 11.19
"Rights Agreement" 11.19
"Rule 144A Information" 4.06
"Sale Price" 3.08(d)
"Securities Act" 3.08(d)
"Special Record Date" 12.02
"Tax Event Date" 10.01
"Time of Determination" 11.01
SECTION 1.03 [Reserved]
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments (which may take the form
of an electronic writing or messaging or otherwise be in accordance with
customary procedures of the Depositary or the Trustee) of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing
(which may be in electronic form); and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent (either of which may be in
electronic form) shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(a) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution (or electronic delivery) or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing or delivering such instrument or writing
7
acknowledged to such officer the execution thereof (or electronic delivery).
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing (electronic or otherwise), or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(b) The ownership of Securities shall be proved by the register
maintained by the Registrar.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution passed by the Company Trustee(s),
fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 and A-2, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage (provided that any such notation, legend or
endorsement required by usage is in a form acceptable to the Company). The
Company shall provide any such notations, legends or endorsements to the Trustee
in writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within the
United States to qualified institutional buyers as defined in Rule 144A ("QIBs")
in reliance on Rule 144A shall be issued, initially in the form of a 144A Global
Security, which shall be deposited with the
8
Trustee at its Institutional Trust Services Office, as custodian for the
Depositary and registered in the name of The Depository Trust Company ("DTC") or
the nominee thereof (such depositary, or any successor thereto, and any such
nominee being hereinafter referred to as the "Depositary"), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
Principal Amount at Maturity of the 144A Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary as hereinafter provided.
(b) Institutional Accredited Investor Securities. Securities offered
and sold within the United States to institutional accredited investors as
defined in Rule 501(a)(1), (2) (3) and (7) under the Securities Act
("Institutional Accredited Investors") shall be issued, initially in the form of
an Institutional Accredited Investor Security, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(c) Global Securities in General. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate Principal Amount at Maturity of
outstanding Securities from time to time endorsed thereon and that the aggregate
Principal Amount at Maturity of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions. Except as provided in this Section 2.01, 2.06 or
2.12, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of Certificated Securities.
Any adjustment of the aggregate Principal Amount at Maturity of a
Global Security to reflect the amount of any increase or decrease in the
Principal Amount at Maturity of outstanding Securities represented thereby shall
be made by the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.12 hereof and shall be made on the records of
the Trustee and the Depositary.
(d) Book-Entry Provisions. This Section 2.01(d) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(d), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE 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
9
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(e) Certificated Securities. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit A-2 attached hereto.
SECTION 2.02 Execution and Authentication.
The Securities shall be executed on behalf of the Company by any
Officer. The signature of the Officer on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of an individual
who was at the time of the execution of the Securities the proper Officer of the
Company shall bind the Company, notwithstanding that such individual has ceased
to hold such office prior to the authentication and delivery of such Securities
or did not hold such office at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer of the
Trustee, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
Subject to the terms of Section 13.04 and 13.05 hereof, the Trustee
shall authenticate and deliver Securities for original issue in an aggregate
Principal Amount at Maturity of up to $314,000,000 (subject to Section 2.07
hereof) upon a Company Order without any further action by the Company. The
aggregate Principal Amount at Maturity of Securities outstanding at any time may
not exceed the amount set forth in the foregoing sentence, except as provided in
Section 2.07.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of Principal Amount at Maturity and any
integral multiple thereof.
The Trustee shall have the right to decline to authenticate and deliver
any securities under this Section if the Trustee, being advised by counsel,
determines that such action
10
may not be lawfully taken or if the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing Holders.
SECTION 2.03 Registrar, Paying Agent, Exchange Agent and Bid
Solicitation Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange for other Securities
("Registrar"), an office or agency where Securities may be presented for
purchase or payment ("Paying Agent") and an office or agency where Securities
may be presented for exchange into Common Stock ("Exchange Agent"). The Company
shall also appoint a bid solicitation agent (the "Bid Solicitation Agent") to
act pursuant to paragraph 5 of the Securities. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars, one or more additional paying agents and one or
more additional exchange agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.05. The term Exchange
Agent includes any additional exchange agent, including any named pursuant to
Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar or co-registrar, Paying Agent, Exchange Agent or Bid Solicitation
Agent (other than the Trustee). The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee
of the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent, Exchange Agent or Bid Solicitation Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar, Exchange Agent or
co-registrar. None of the Company or any Subsidiary or any Affiliate of either
of them may act as Bid Solicitation Agent.
The Company initially appoints the Trustee as Registrar, Exchange
Agent, Paying Agent and Bid Solicitation Agent in connection with the
Securities.
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust.
Except as otherwise provided herein, by no later than 10:00 a.m., New
York City time, on each due date of payments in respect of any Security, the
Company shall deposit with the Paying Agent a sum of money (in immediately
available funds if deposited on the due date) or 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 Common
Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. At any time during the continuance of any such default, the
Paying Agent shall, upon the written request of the Trustee, forthwith pay to
the Trustee all money and 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 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 Common Stock held by
11
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
Common Stock.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall cause to
be furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.
SECTION 2.06 Transfer and Exchange.
Subject to Section 2.12 hereof,
(a) upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder's attorney duly
authorized in writing, at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03, the Company shall execute,
and the Trustee upon receipt of a Company Order shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount at Maturity. The Company shall not charge a service charge for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to pay all taxes, assessments or other governmental charges
that may be imposed in connection with the registration of transfer or exchange
of the Securities from the Securityholder requesting such registration of
transfer or exchange.
At the option of the Holder, Certificated Securities may be exchanged
for other Securities of any authorized denomination or denominations, of a like
aggregate Principal Amount at Maturity, upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's attorney
duly authorized in writing, at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee upon
receipt of a Company Order shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
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(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon registration
of transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the registration of transfer,
exchange or replacement of Securities subject to restrictions on transfer and
bearing the legends set forth on the form of Security attached hereto as
Exhibits A-1 and A-2 setting forth such restrictions (collectively, the
"Legend"), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the Registrar
such satisfactory evidence, which shall include an opinion of counsel, as may be
reasonably required by the Company and the Registrar, that neither the Legend
nor the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A or Rule 144 under the
Securities Act or that such Securities are not "restricted" within the meaning
of Rule 144 under the Securities Act. Upon (i) provision of such satisfactory
evidence, or (ii) notification by the Company to the Trustee and Registrar of
the sale of such Security pursuant to a registration statement that is effective
at the time of such sale, the Trustee, at the written direction of the Company,
shall authenticate and deliver a Security that does not bear the Legend. If the
Legend is removed from the face of a Security and the Security is subsequently
held by an Affiliate of the Company, the Legend shall be reinstated by the
Company.
The Trustee and the Registrar shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
13
SECTION 2.07 Replacement Securities.
(a) If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a protected purchaser within the
meaning of Article 8 of the Uniform Commercial Code as in effect from time to
time in the State of New York (a "Protected Purchaser"), the Company shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and Principal Amount at
Maturity, bearing a number not contemporaneously outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
(c) Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(d) Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
(e) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action.
(a) Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those paid
pursuant to Section 2.07 and delivered to it for cancellation and those
described in this Section 2.08 as not outstanding. A Security does not cease to
be outstanding because the Company or an Affiliate thereof holds the Security;
provided, however, that in determining whether the Holders of the requisite
Principal Amount at Maturity of Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time of such
14
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).
(b) If a Security is replaced pursuant to Section 2.07, the replaced
Security ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to each of them that the replaced Security is held by a
Protected Purchaser unaware that such Security has been replaced.
(c) If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following the Purchase Date or a Change
in Control Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Change in Control
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Original Issue Discount and interest (including
contingent interest), if any, on such Securities shall cease to accrue;
provided, that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture.
(d) If a Security is exchanged in accordance with Article 11, then from
and after the time of exchange on the Exchange Date, such Security shall cease
to be outstanding and Original Issue Discount and interest (including contingent
interest), if any, shall cease to accrue on such Security.
SECTION 2.09 Temporary Securities.
(a) Pending the preparation of definitive Securities, the Company may
execute, and the Trustee upon receipt of a Company Order shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
(b) If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee upon receipt of a Company Order shall authenticate and deliver
in exchange therefor a like Principal Amount at Maturity of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.10 Cancellation.
(a) All Securities surrendered for payment, purchase by the Company
pursuant to Article 3, exchange, redemption or registration of transfer or
exchange shall, if surrendered to
15
any person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has exchanged pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with the Trustee's customary procedure.
SECTION 2.11 Persons Deemed Owners.
(a) Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of the Security
or the payment of any Redemption Price, Purchase Price or Change in Control
Purchase Price in respect thereof, and interest (including contingent interest,
if any) thereon, for the purpose of exchange and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 2.12 Global Securities.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall be
made only in accordance with Section 2.06 and Section 2.12(a)(i), (B) transfer
of a beneficial interest in a Global Security for a Certificated Security shall
comply with Section 2.06 and Section 2.12(a)(ii) below, and (C) transfers of a
Certificated Security shall comply with Section 2.06 and Section 2.12(a)(iii)
and (iv) below.
(i) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such
transfer to any such other Person may be registered; provided
that this clause (i) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but
is not itself a Global Security. No transfer of a Security to
any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered
in the name of such Person. Nothing in this Section 2.12(a)(i)
shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global
Security for a Certificated Security. A beneficial interest in
a Global Security may not be exchanged for a Certificated
Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a request for
16
transfer of a beneficial interest in a Global Security in
accordance with Applicable Procedures for a Certificated
Security in the form satisfactory to the Trustee, together
with:
(a) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1,
and, if requested by the Company or the Registrar,
certification in the form set forth in Exhibit B-2,
that such beneficial interest in the Global Security
is being transferred to an Institutional Accredited
Investor in accordance with subparagraphs (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act;
(b) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its
books and records with respect to such Global
Security to reflect a decrease in the aggregate
Principal Amount at Maturity of the Securities
represented by the Global Security, such instructions
to contain information regarding the Depositary
account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion
of counsel or other evidence reasonably satisfactory
to them as to the compliance with the restrictions
set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate Principal
Amount at Maturity of Securities represented by the Global Security to
be decreased by the aggregate Principal Amount at Maturity of the
Certificated Security to be issued, shall authenticate and deliver such
Certificated Security and shall debit or cause to be debited to the
account of the Person specified in such instructions a beneficial
interest in the Global Security equal to the Principal Amount at
Maturity of the Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented to the Registrar with a
request:
(x) to register the transfer of such Certificated Securities;
or
(y) to exchange such Certificated Securities for an equal
Principal Amount at Maturity of Certificated Securities of
other authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Securities surrendered for
registration of transfer or exchange:
(a) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
17
(b) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied
by the following additional information and documents, as
applicable:
(A) if such Certificated Securities are
being delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
(B) if such Certificated Securities are
being transferred to the Company, a certification to
that effect; or
(C) if such Certificated Securities are
being transferred pursuant to an exemption from
registration (i) a certification to that effect (in
the form set forth in Exhibit B-1 and B-2, if
applicable) and (ii) if the Company or Registrar so
requests, an opinion of counsel or other evidence
reasonably satisfactory to them as to the compliance
with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated
Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements
set forth below.
Upon receipt by the Trustee of a Certificated Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(a) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1, that such
Certificated Security is being transferred to a QIB in
accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an
increase in the aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount at Maturity of Securities
represented by the Global Security to be increased by the aggregate
Principal Amount at Maturity of the Certificated Security to be
exchanged, and shall credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Global
18
Security equal to the Principal Amount at Maturity of the Certificated
Security so cancelled. If no Global Securities are then outstanding,
the Company shall issue and the Trustee upon receipt of a Company Order
shall authenticate a new Global Security in the appropriate Principal
Amount at Maturity.
(b) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an Opinion of Counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit B-1, dated the date of such surrender and signed by the Holder
of such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company, the Trustee and
the Registrar and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate Principal Amount at Maturity, which shall not bear the restrictive
Legend. The Company shall inform the Trustee of the effective date of any
registration statement registering the Securities under the Securities Act. The
Trustee and the Registrar shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the aforementioned Opinion of
Counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the
term "transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or
the Securities, except as provided in Section 2.12(a)(ii), a
Global Security shall not be exchanged in whole or in part for
a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities
19
registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified
the Company that it is unwilling or unable to continue as
Depositary for such Global Security or such Depositary has
ceased to be a "clearing agency" registered under the Exchange
Act, and a successor Depositary is not appointed by the
Company within 90 days, (ii) the Company decides to
discontinue use of the system of book-entry transfer through
DTC (or any successor depositary); or (iii) an Event of
Default has occurred and is continuing with respect to the
Securities. Any Global Security exchanged pursuant to clause
(i) or (ii) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause
(iii) above may be exchanged in whole or from time to time in
part as directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof shall be
a Global Security; provided that any such Security so issued
that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global
Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an
aggregate Principal Amount at Maturity equal to that of such
Global Security or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear
the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the Principal
Amount at Maturity thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of
an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise authorize
any Person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take
any action which a holder is entitled to take under this
Indenture or the Securities.
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly make
available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without
interest coupons.
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(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered
in the name of the Depositary or any nominee thereof, or under
any such Global Security, and the Depositary or such nominee,
as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of
the rights of a holder of any Security.
SECTION 2.13 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee.
The Company, at its option, may redeem the Securities in accordance
with the provisions of paragraphs 6 and 8 of the Securities. If the Company
elects to redeem Securities pursuant to paragraph 6 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the Principal Amount at
Maturity of Securities to be redeemed, the CUSIP number of Securities to be
redeemed, the Redemption Price and the amount of contingent interest, if any,
payable on the Redemption Date.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 25 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
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SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by any other method
the Trustee considers fair and appropriate (so long as such method is not
prohibited by the rules of any stock exchange on which the Securities are then
listed). The Trustee shall make the selection at least 30 days but not more than
60 days before the Redemption Date from outstanding Securities not previously
called for redemption.
Securities and portions of them the Trustee selects shall be in
Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is exchanged in part
before termination of the exchange right with respect to the portion of the
Security so selected, the exchanged portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been exchanged during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 3.03 Notice of Redemption.
At least 15 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price and, to the extent known at the time of such
notice, the amount of contingent interest, if any, payable on the
Redemption Date;
(3) the Exchange Rate;
(4) the name and address of the Paying Agent and Exchange Agent;
(5) that Securities called for redemption may be exchanged at any time
before the close of business on the second Business Day immediately
preceding the Redemption Date;
(6) that Holders who want to exchange Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
(7) the election of the Company (which, subject to the provisions of
Article 11 of this Indenture, shall be irrevocable) to deliver shares
of Common Stock or to
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pay cash in lieu of delivery of such shares with respect to any
Security that may be exchanged after mailing of such notice prior to
the Redemption Date;
(8) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and contingent interest,
if any;
(9) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts at Maturity of the
particular Securities to be redeemed;
(10) that, unless the Company defaults in making payment of such
Redemption Price and contingent interest, if any, Original Issue
Discount and interest (including semiannual and contingent interest),
if any, on Securities called for redemption will cease to accrue on and
after the Redemption Date; and
(11) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least five Business Days (unless a shorter period
shall be satisfactory to the Trustee) prior to the date such notice of
redemption must be mailed.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is given, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price
(together with accrued contingent interest, if any, to but not including the
date of redemption) stated in the notice except for Securities which are
exchanged in accordance with the terms of this Indenture. Upon surrender to the
Paying Agent, such Securities shall be paid at the Redemption Price (together
with accrued contingent interest, if any, to but not including the date of
redemption) stated in the notice.
SECTION 3.05 Deposit of Redemption Price.
Prior to 10:00 a.m. (New York City time) on any 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, and any accrued and
unpaid contingent interest to but not including the date of redemption with
respect to, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which on or prior thereto have been
delivered by the Company to the Trustee for cancellation or have been exchanged.
The Paying Agent shall as promptly as practicable return to the Company any
money, not required for that purpose because of exchange of Securities pursuant
to Article 11. 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.
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SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder a new
Security in an authorized denomination equal in Principal Amount at Maturity to
the unredeemed portion of the Security surrendered.
SECTION 3.07 Exchange Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and exchange of any Securities called for redemption by
an agreement with one or more investment banks or other purchasers to purchase
such Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of, and any
accrued and unpaid contingent interest with respect to, such Securities.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Prices of such Securities shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly
surrendered for exchange by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 11) surrendered by such purchasers for exchange, all as of
immediately prior to the close of business on the Business Day prior to the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and exchange in the same
manner as it would moneys deposited with it by the Company for the redemption of
Securities. Without the Trustee's prior written consent, no arrangement between
the Company and such purchasers for the purchase and exchange of any Securities
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and exchange of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
SECTION 3.08 Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company pursuant to
paragraph 7 of the Securities at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "Purchase Notice") at any time from the opening of business
on the date that is at least 20 Business Days prior to a Purchase Date
until the close of business on such Purchase Date stating:
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(A) the certificate number of the Security which the Holder
will deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which
portion must be a Principal Amount at Maturity of $1,000 or an
integral multiple thereof,
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in
paragraph 7 of the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such
Purchase Date, in whole or in part, in shares of Common Stock
but such portion of the Purchase Price shall ultimately be
payable to such Holder entirely in cash because any of the
conditions to payment of the Purchase Price in Common Stock is
not satisfied prior to the close of business on such Purchase
Date, as set forth in Section 3.08(d), whether such Holder
elects (i) to withdraw such Purchase Notice as to some or all
of the Securities to which such Purchase Notice relates
(stating the Principal Amount at Maturity and certificate
numbers of the Securities as to which such withdrawal shall
relate), or (ii) to receive cash in respect of the entire
Purchase Price for all Securities (or portions thereof) to
which such Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on or after
the Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Purchase Price therefor; provided, however, that
such Purchase Price shall be so paid pursuant to this Section 3.08 only
if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Purchase Notice, as
determined by the Company.
If a Holder, in such Xxxxxx's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.10,
fails to indicate such Xxxxxx's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the Purchase Price for all Securities subject to such
Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder (including accrued and unpaid contingent interest, if
any) promptly following the later of the Purchase Date and the time of delivery
of the Security.
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Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.08(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price. The
Securities to be purchased pursuant to Section 3.08(a) may be paid for, at the
election of the Company, in U.S. legal tender ("cash") or Common Stock, or in
any combination of cash and Common Stock, subject to the conditions set forth in
Sections 3.08(c) and (d). The Company shall designate, in the Company Notice
delivered pursuant to Section 3.08(e), whether the Company will purchase the
Securities for cash or Common Stock, or, if a combination thereof, the
percentages of the Purchase Price of Securities in respect of which it will pay
in cash or Common Stock; provided that the Company will pay cash for fractional
interests in Common Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 3.08 shall receive the same percentage of
cash or Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 3.08(d) with regard to the payment of cash in
lieu of fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Securities of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under
applicable state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 3.08(b) or pursuant to Section
3.08(d) in the event of a failure to satisfy, prior to the close of business on
the Purchase Date, any condition to the payment of the Purchase Price, in whole
or in part, in Common Stock.
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner
of payment set forth in Section 3.08(d) have been or will be complied
with, and
(iv) whether the Company desires the Trustee to give the Company Notice
required by Section 3.08(e).
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(c) Purchase with Cash. On each Purchase Date, at the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company with cash equal to the aggregate Purchase Price of
such Securities. If the Company elects to purchase Securities with cash, the
Company Notice, as provided in Section 3.08(e), shall be sent to Holders (and to
beneficial owners as required by applicable law) not less than 20 Business Days
prior to such Purchase Date (the "Company Notice Date").
(d) Payment by Delivery of Common Stock. On each Purchase Date, at the
option of the Company, the Purchase Price of Securities in respect of which a
Purchase Notice pursuant to Section 3.08(a) has been given, or a specified
percentage thereof, may be paid by the Company by the delivery of a number of
shares of Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Securities in cash by (ii) the Market Price of a share of
Common Stock, subject to the next succeeding paragraph.
The Company will not deliver a fractional share of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a fraction of
a share shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
purchased.
If the Company elects to purchase the Securities by the delivery of
shares of Common Stock, the Company Notice, as provided in Section 3.08(e),
shall be sent to the Holders (and to beneficial owners as required by applicable
law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the Securities
pursuant to Section 3.08 through the delivery of shares of Common Stock shall be
conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of
election to purchase all or a specified percentage of the Securities
with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or
admitted for listing subject to notice of issuance on the principal
United States securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a national or
regional securities exchange, as quoted on the National Association of
Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be delivered in
respect of the payment of the Purchase Price under the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), in each case, if
required;
27
(iv) any necessary qualification or registration under applicable state
securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the delivery of
the Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be delivered by the Company in payment of the
Purchase Price in respect of Securities have been duly authorized by
all necessary corporate action of the Parent and, when delivered
pursuant to the terms of this Indenture in payment of the Purchase
Price in respect of the Securities, will be validly issued, fully paid
and non-assessable and, to the best of such counsel's knowledge, free
from preemptive rights, and, in the case of such Officers' Certificate,
stating that conditions (i), (ii), (iii) and (iv) above and the
condition set forth in the second succeeding sentence have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (ii) and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be delivered for each $1,000 Principal Amount at Maturity of
Securities and the Sale Price of a share of Common Stock on each Trading Day
during the period for which the Market Price is calculated. The Company may pay
the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation. If the foregoing conditions are not satisfied
with respect to a Holder or Holders prior to the close of business on the
Purchase Date and the Company has elected to purchase the Securities pursuant to
this Section 3.08 through the delivery of shares of Common Stock, the Company
shall pay the entire Purchase Price of the Securities of such Holder or Holders
in cash.
The "Market Price" means the average of the Sale Prices of the Common
Stock for the five Trading Day period ending on the third Business Day prior to
the applicable Purchase Date (if the third Business Day prior to the applicable
Purchase Date is a Trading Day, or if not, then on the last Trading Day prior to
such third Business Day), appropriately adjusted to take into account the
occurrence. during the period commencing on the first of such Trading Days
during such five Trading Day period and ending on such Purchase Date, of any
event described in Section 11.06, 11.07 or 11.08; subject, however, to the
conditions set forth in Sections 11.09 and 11.10.
The "Sale Price" of the 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 average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is traded (which is currently the New York Stock Exchange) or, if
the Common Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated.
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(e) Notice of Election. The Company's notice of election to purchase
with cash or Common Stock or any combination thereof shall be sent to the
Holders (and to beneficial owners as required by applicable law) in the manner
provided in Section 13.02 at the time specified in Section 3.08(c) or (d), as
applicable (the "Company Notice"). Such Company Notice shall state the manner of
payment elected and shall contain the following information:
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date
equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any cash amount to be paid in
lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the Common
Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market
risk with respect to the value of the Common Stock to be received from
the date such Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase
Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price, the Exchange Rate and, to the extent known at
the time of such notice, the amount of contingent interest, if any,
that will be accrued and payable with respect to the Securities as of
the Purchase Date;
(ii) the name and address of the Paying Agent and the Exchange Agent;
(iii) that Securities as to which a Purchase Notice has been given may
be exchanged pursuant to Article 11 hereof only if the applicable
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;
(iv) that Securities must be surrendered to the Paying Agent to collect
payment of the Purchase Price and contingent interest, if any;
(v) that the Purchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn, together with any accrued
contingent interest payable with respect thereto, will be paid promptly
following the later of the Purchase Date and the time of surrender of
such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the exchange rights of the Securities;
29
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms
of Section 3.08(a)(1)(D) or Section 3.10);
(ix) that, unless the Company defaults in making payment of such
Purchase Price and contingent interest, if any, Original Issue Discount
and interest (including contingent interest), if any, on Securities
surrendered for purchase will cease to accrue on and after the Purchase
Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to be
delivered for each $1,000 Principal Amount at Maturity of Securities, the
Company will issue a press release and publish such determination on the
Company's web site on the World Wide Web or though such other public medium as
the Company may use at that time.
(f) Covenants of the Company. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any lien or adverse claim.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests or
contingent interest, as applicable) or shares of Common Stock, or a combination
thereof, as applicable, at the time and in the manner as provided in Section
3.11, sufficient to pay the aggregate Purchase Price of, and any accrued and
unpaid contingent interest with respect to, all Securities to be purchased
pursuant to this Section 3.08. As soon as practicable after the Purchase Date,
the Company shall deliver to each Holder entitled to receive Common Stock
through the Paying Agent, a certificate for the number of full shares of Common
Stock deliverable in payment of the Purchase Price and cash in lieu of any
fractional interests. The person in whose name the certificate for Common Stock
is registered shall be treated as a holder of record of shares of Common Stock
on the Business Day following the Purchase Date. No payment or adjustment will
be made for dividends on the Common Stock the record date for which occurred on
or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issuance and delivery of shares of Common Stock. However, the Holder shall
pay any such tax which is due because the Holder requests the shares of Common
Stock to be delivered in a name other than the Holder's name. The Paying Agent
may refuse to deliver the certificates representing the Common Stock being
delivered in a name other than the Holder's name until the Paying Agent receives
a sum sufficient to pay any tax which will be due because the shares of Common
Stock are to be
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delivered in a name other than the Holder's name. Nothing herein shall
preclude any income tax withholding required by law or regulations.
SECTION 3.09 Purchase of Securities at Option of the Holder upon Change
in Control.
(a) If on or prior to the date specified in paragraph 7 of the
Securities, there shall have occurred a Change in Control, Securities shall be
purchased by the Company, at the option of the Holder thereof, at a purchase
price specified in paragraph 7 of the Securities (the "Change in Control
Purchase Price"), as of the date that is no later than 35 Business Days after
the occurrence of the Change in Control but in no event prior to the date on
which such Change in Control occurs (the "Change in Control Purchase Date"),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.09(c).
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
o any person or group, other than a Subsidiary of the Parent,
any employee benefit plan of the Parent or its Subsidiaries or
any permitted holder(s), becomes the beneficial owner of
Voting Stock of the Parent representing more than 50% of the
total voting power of all classes of Voting Stock of the
Parent entitled to vote generally in the election of the
members of its board of directors; or
o any transaction or event occurs as a result of which the
Common Stock of the Parent ceases (or will cease upon
consummation or immediately following such transaction or
event) to be listed on a United States national securities
exchange or approved for quotation on the Nasdaq National
market or any similar United States system for automated
dissemination of quotations of securities prices; or
o at any time a majority of the Company Trustee(s) cease to
consist of either the Parent or entities controlled, directly
or indirectly, by the Parent; or
o the Parent consolidates with or merges with or into another
person (other than a Subsidiary of the Parent), or sells,
conveys, transfers or leases all or substantially all of its
properties and assets to any person (other than a Subsidiary
of the Parent), consolidates with or merges with or into the
Parent, and the outstanding Voting Stock of the Parent is
reclassified into, exchanged for or converted into the right
to receive any other property or security, provided that none
of these circumstances will be a change in control if the
persons that beneficially own the Voting Stock of the Parent
immediately prior to the transaction own, directly or
indirectly, shares with a majority of the total voting power
of all outstanding Voting Stock of the surviving or transferee
person that are entitled to vote generally in the election of
that person's board of directors, managers or trustees
immediately after the transaction.
Notwithstanding the above, no change in control will occur under the
first or fourth bullets above as a result of any transfer of voting power
referred to therein that is solely the result of any conversion or
reclassification of all Common Stock of the Parent into Voting
31
Stock of the Parent, and no change in control will occur under the second bullet
above as a result of such a conversion or reclassification of Common Stock so
long as the Voting Stock outstanding after such transaction is listed or
approved for quotation as described in the second bullet.
For purposes of the change in control provision, a "permitted holder"
means (a) each of the individuals who own Voting Stock of the Parent on the date
hereof and (b) any bona fide employee of the Parent or the Company to whom (x)
all or a part of any permitted holder's Voting Stock may be transferred upon
such permitted holder ceasing to be an employee of the Parent or the Company or
(y) the Parent may issue new shares of Voting Stock. For purposes of the
definition of a permitted holder, references to Voting Stock of the Parent
include beneficial interests in any voting or similar trust that owns Voting
Stock of the Parent.
For purposes of defining a change in control:
o the term "person" and the term "group" have the meanings given
by Section 13 (d) and 14(d) of the Exchange Act or any
successor provisions;
o the term "group" includes any group acting for the purpose of
acquiring, holding or disposing of securities within the
meaning of Rule l3d-5(b)(1) under the Exchange Act or any
successor provision; and
o the term "beneficial owner" is determined in accordance with
Rules 13d-3 and 13d-5 under the Exchange Act or any successor
provisions, except that a person will be deemed to have
beneficial ownership of all shares that person has the right
to acquire irrespective of whether that right is exercisable
immediately or only after the passage of time
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Change in
Control Purchase Notice to be completed by the Securityholder and shall state:
(1) briefly, the events causing a Change in Control and the date of
such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to
this Section 3.09 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price and, to the extent known at
the time of such notice, the amount of contingent interest, if any,
that will be accrued and payable with respect to the Securities as of
the Change in Control Purchase Date;
(5) the name and address of the Paying Agent and the Exchange Agent;
32
(6) the Exchange Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase Notice has
been given may be exchanged pursuant to Article 11 hereof only if the
Change in Control Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent to collect
payment of the Change in Control Purchase Price and contingent
interest, if any;
(9) that the Change in Control Purchase Price for any Security as to
which a Change in Control Purchase Notice has been duly given and not
withdrawn, together with any accrued contingent interest payable with
respect thereto, will be paid promptly following the later of the
Change in Control Purchase Date and the time of surrender of such
Security as described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.09;
(11) briefly, the exchange rights of the Securities;
(12) the procedures for withdrawing a Change in Control Purchase
Notice;
(13) that, unless the Company defaults in making payment of such Change
in Control Purchase Price and contingent interest, if any, Original
Issue Discount and interest (including semiannual and contingent
interest), if any, on Securities surrendered for purchase will cease to
accrue on and after the Change in Control Purchase Date; and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section 3.09(a) upon
delivery of a written notice of purchase (a "Change in Control Purchase Notice")
to the Paying Agent at any time prior to the close of business on the Change in
Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the Security
which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in paragraph 7 of the Securities.
The delivery of such Security to the Paying Agent prior to, on or after
the Change in Control Purchase Date (together with all necessary endorsements)
at the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Purchase Price
33
therefor; provided, however, that such Change in Control Purchase Price shall be
so paid pursuant to this Section 3.09 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth
in the related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder (together with accrued and unpaid contingent interest,
if any) promptly following the later of the Change in Control Purchase Date and
the time of delivery of the Security to the Paying Agent in accordance with this
Section 3.09.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 3.09(c) shall have the right to withdraw such Change in Control Purchase
Notice at any time prior to the close of business on the Change in Control
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
The Company shall not be required to comply with this Section 3.09 if a
third party mails a written notice of Change in Control in the manner, at the
times and otherwise in compliance with this Section 3.09 and repurchases all
Securities for which a Change in Control Purchase Notice shall be delivered and
not withdrawn.
SECTION 3.10 Effect of Purchase Notice or Change in Control Purchase
Notice.
Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, and any accrued and unpaid contingent interest, with respect to such
Security. Such Purchase Price or Change in Control Purchase Price and contingent
interest, if any, shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Purchase Date or the Change in Control Purchase Date, as the case may be, with
respect to such Security (provided the conditions in Section 3.08(a) or Section
3.09(c), as applicable, have been satisfied) and (y) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner required
by Section 3.08(a) or Section 3.09(c), as applicable. Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice, as the case may
be, has been
34
given by the Holder thereof may not be exchanged pursuant to Article 11 hereof
on or after the date of the delivery of such Purchase Notice or Change in
Control Purchase Notice, as the case may be, unless such Purchase Notice or
Change in Control Purchase Notice, as the case may be, has first been validly
withdrawn as specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice or Change in
Control Purchase Notice, as the case may be, at any time prior to the close of
business on the Purchase Date or the Change in Control Purchase Date, as the
case may be, specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Security with respect to
which such notice of withdrawal is being submitted, and
(3) the Principal Amount at Maturity, if any, of such Security which
remains subject to the original Purchase Notice or Change in Control
Purchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the delivery of Common Stock in payment of the Purchase
Price, including cash in lieu of fractional shares) or 3.09 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Purchase Notice or Change in Control
Purchase Notice, as the case may be) and is continuing an Event of Default
(other than a default in the payment of the Purchase Price or Change in Control
Purchase Price, as the case may be, and any accrued and unpaid contingent
interest with respect to such Securities). The Paying Agent will promptly return
to the respective Holders thereof any Securities (x) with respect to which a
Purchase Notice or Change in Control Purchase Notice, as the case may be, has
been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, and any
accrued and unpaid contingent interest with respect to such Securities) in which
case, upon such return, the Purchase Notice or Change in Control Purchase Notice
with respect thereto shall be deemed to have been withdrawn.
35
SECTION 3.11 Deposit of Purchase Price or Change in Control Purchase
Price.
Prior to 10:00 a.m. (local time in The City of New York) on the
Business Day following the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of money (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted hereunder,
sufficient to pay the aggregate Purchase Price or Change in Control Purchase
Price, as the case may be, of, and any accrued and unpaid contingent interest
with respect to, all the Securities or portions thereof which are to be
purchased as of the Purchase Date or Change in Control Purchase Date, as the
case may be.
SECTION 3.12 Securities Purchased in Part.
Any Security which is to be purchased only in part shall be surrendered
at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Xxxxxx's attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Xxxxxx in aggregate Principal
Amount at Maturity equal to, and in exchange for, the portion of the Principal
Amount at Maturity of the Security so surrendered which is not purchased.
SECTION 3.13 Covenant to Comply With Securities Laws Upon Purchase of
Securities.
In connection with any offer to purchase or purchase of Securities
under Section 3.08 or 3.09 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 under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.08 and 3.09 to be exercised in the time
and in the manner specified in Sections 3.08 and 3.09.
SECTION 3.14 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 15 of
the Securities, together with interest or dividends, if any, thereon (subject to
the provisions of Section 7.01(f)), held by them for the payment of the Purchase
Price or Change in Control Purchase Price, as the case may be, or contingent
interest, if any; provided, however, that to the extent that the aggregate
amount of cash or shares of Common Stock deposited by the Company pursuant to
Section 3.11 exceeds the aggregate Purchase Price or Change in Control Purchase
Price, as the case may be, of, and
36
the accrued and unpaid contingent interest with respect to, the Securities or
portions thereof which the Company is obligated to purchase as of the Purchase
Date or Change in Control Purchase Date, as the case may be, whether as a result
of withdrawal or otherwise, then promptly after the Business Day following the
Purchase Date or Change in Control Purchase Date, as the case may be, the
Trustee shall return any such excess to the Company together with interest or
dividends, if any, thereon (subject to the provisions of Section 7.01(f)).
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities or pursuant
to this Indenture. Any amounts to be given to the Trustee or Paying Agent, shall
be deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time,
by the Company. Principal Amount at Maturity, Restated Principal Amount, Issue
Price plus accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price, semiannual and contingent interest, if any,
shall be considered paid on the applicable date due if on such date (or, in the
case of a Purchase Price or Change in Control Purchase Price, on the Business
Day following the applicable Purchase Date or Change in Control Purchase Date,
as the case may be) the Trustee or the Paying Agent holds, in accordance with
this Indenture, money or securities, if permitted hereunder, sufficient to pay
all such amounts then due.
The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the rate per annum set forth in paragraph 1 of the
Securities, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
SECTION 4.02 SEC and Other Reports.
If requested by the Trustee, the Company shall deliver to the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of the same shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
37
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
October 31, 2001) an Officers' Certificate, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 4.04 Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency of the Trustee, Registrar, Paying Agent and Exchange
Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange for other
Securities, purchase, redemption or exchange for Common Stock and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The agency specified in Section 13.02 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 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06 Delivery of Certain Information.
At any time when the Company or the Parent is not subject to Section 13
or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial
holder of Securities or shares of Common Stock that are restricted securities
delivered upon exchange thereof, the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Securities or holder of shares of Common Stock delivered
upon exchange of Securities, 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
38
security. "Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.07 Calculation of Tax Original Issue Discount.
The Company agrees, and each Holder and any beneficial owner of a
Security by its purchase thereof shall be deemed to agree, to treat, for United
States federal income tax purposes, the Securities as debt instruments that are
subject to Section 1.1275-4(b) of the treasury regulations promulgated by the
Department of Treasury pursuant to the Internal Revenue Code of 1986, as amended
(the "Treasury Regulations"). For United States federal income tax purposes, the
Company shall accrue, and each Holder or beneficial owner of a Security shall
accrue, interest with respect to outstanding Securities as original issue
discount for United States federal income tax purposes ("Tax OID") according to
the "noncontingent bond method," set forth in section 1.1275-4(b) of the
Treasury Regulations, using the comparable yield set forth in Annex C to this
Indenture compounded semiannually and the projected payment schedule attached as
Annex C to this Indenture. The Company shall file with the Trustee promptly at
the end of each fiscal year (i) a written notice specifying the amount of
original issue discount for United States federal income tax purposes (including
daily rates and accrual periods) accrued on outstanding Securities as of the end
of such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time, including the amount of any adjustment made under
the noncontingent bond method to account for the amount of any difference
between the amount of an actual payment and the amount of a projected payment.
The Company acknowledges and agrees, and each Holder and any beneficial
holder of a Security by its purchase thereof shall be deemed to acknowledge and
agree, that (i) the comparable yield means the annual yield the Company would
pay, as of the Issue Date, on a fixed rate, nonexchangeable debt security with
no contingent payments, but with terms and conditions otherwise comparable to
those of the Securities, (ii) the schedule of projected payments is determined
on the basis of an assumption of linear growth of the stock price and a constant
dividend yield and is not determined for any purpose other than for the
determination of interest accruals and adjustments thereof in respect of the
Securities for United States federal income tax purposes and (iii) the
comparable yield and the schedule of projected payments do not constitute a
projection or representation regarding the amounts payable on the Securities.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets.
The Company shall not consolidate with or merge with or into any other
person or convey, transfer or lease all or substantially all of its properties
and assets to any person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance, transfer
or lease all or substantially all the
39
properties and assets of the Company (i) shall be organized and validly existing
under the laws of the United States or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
of the obligations of the Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Subsidiaries (other
than to the Company or another Subsidiary), which, if such assets were owned by
the Company, would constitute all or substantially all of the properties and
assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture pursuant to Section 11.14, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor person shall enter into
a supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in payment of any contingent interest or of
any semiannual interest which becomes payable after the Securities have
been converted to semiannual coupon notes following the occurrence of a
Tax Event pursuant to Article 10, which default, in any case, continues
for 30 days;
(2) the Company defaults in the payment of the Principal Amount at
Maturity (or, if the Securities have been converted to semiannual
coupon notes following the occurrence of a Tax Event pursuant to
Article 10, the Restated Principal
40
Amount), Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase Price or Change in Control Purchase Price on any
Security when the same becomes due and payable at its Stated Maturity,
upon redemption, upon declaration, when due for purchase by the Company
or otherwise;
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clauses
(1) and (2) above) and such failure continues for 60 days after receipt
by the Company of a Notice of Default;
(4) (a) the Company fails to make any payment by the end of any
applicable grace period after maturity of Debt in an amount in excess
of $10,000,000 and continuance of such failure, or (b) the acceleration
of Debt has occurred in an amount in excess of $10,000,000 because of a
default with respect to such Debt without such Debt having been
discharged or such acceleration having been cured, waived, rescinded or
annulled, in the case of (a) or (b) above, for a period of 30 days
after receipt by the Company of a Notice of Default; provided, however,
that if any such failure or acceleration referred to in (a) or (b)
above shall cease or be cured, waived, rescinded or annulled, then the
Event of Default by reason thereof shall be deemed not to have
occurred; or
(5) the Company or any Significant Subsidiary, pursuant to or under or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or the commencement of any
case against it;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
(F) consents to the filing of such petition or the appointment
of or taking possession by a Custodian; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding, or
adjudicates the Company or any Significant Subsidiary
insolvent or bankrupt;
41
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days.
(a) "Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
(b) "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clause (3) or 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 at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (3) or 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 become an Event of
Default under clause (3) or 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) in respect of the Company) occurs and is continuing, the
Trustee by Notice to the Company, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the Securities at the time outstanding by notice
to the Company and the Trustee, may declare the Issue Price plus accrued
Original Issue Discount through the date of declaration, and any accrued and
unpaid contingent interest through the date of such declaration, on all the
Securities to be immediately due and payable. Upon such a declaration, such
Issue Price plus accrued Original Issue Discount, and such accrued and unpaid
contingent interest, if any, shall be due and payable immediately. If an Event
of Default specified in Section 6.01(5) or (6) in respect of the Company occurs
and is continuing, the Issue Price plus accrued Original Issue Discount plus
accrued and unpaid contingent interest, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Issue Price
plus accrued Original Issue Discount plus accrued and unpaid contingent interest
that have become due solely as a result of acceleration and if all
42
amounts due to the Trustee under Section 7.07 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 Issue Price plus accrued
Original Issue Discount plus any accrued and unpaid contingent interest, if any,
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. Except as set forth in Section 2.07 hereof, no remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults.
Subject to Section 6.02, the Holders of a majority in aggregate
Principal Amount at Maturity of the Securities 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 (1) an Event of Default
described in Section 6.01(1) or (2), (2) a Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
Securityholder affected or (3) a Default which constitutes a failure to exchange
any Security in accordance with the terms of Article 11. 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.
SECTION 6.05 Control by Majority.
The Holders of a majority in aggregate Principal Amount at Maturity of
the Securities at the time outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability unless
the Trustee is offered indemnity satisfactory to it.
SECTION 6.06 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
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(2) the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(5) the Holders of a majority in aggregate Principal Amount at Maturity
of the Securities at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
(a) A Securityholder may not use this Indenture to prejudice the rights
of any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the Principal Amount at Maturity (or if the
Securities have been converted to semiannual coupon notes following a Tax Event
pursuant to Article 10, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price, contingent interest or interest, if any, in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities or any Redemption Date, and to exchange the Securities in
accordance with Article 11, or to bring suit for the enforcement of any such
payment on or after such respective dates or the right to exchange, 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) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount owing with respect
to the Securities and the amounts provided for in Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Principal Amount at
Maturity, Issue Price plus accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price, contingent interest or
interest, if any, in respect of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any such
amount) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
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(a) to file and prove a claim for the whole amount of the Principal
Amount at Maturity, Issue Price plus accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price as
the case may be, and contingent interest or semiannual interest, if
any, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel or any other amounts
due the Trustee under Section 7.07) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount at Maturity, Issue Price plus accrued Original
Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price, as the case may be, and contingent interest or
semiannual interest, if any, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Securities;
and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
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SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than 10% in aggregate Principal Amount at Maturity of the Securities at
the time outstanding.
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 at Maturity, Issue Price plus accrued Original Issue Discount, Redemption
Price, Purchase Price, Change in Control Purchase Price, as the case may be, and
contingent interest or semiannual interest, if any, in respect of Securities, or
any interest on such amounts, as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in case of any such certificates or opinions
46
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
SECTION 7.02 Rights of Trustee.
Subject to its duties and responsibilities under the provisions of
Section 7.01,
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
47
(c) the Trustee and the Bid Solicitation Agent may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Company Trustee(s) may be sufficiently evidenced by a resolution of the
Company Trustee(s);
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Institutional Trust Services Office of
the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take
48
specified actions pursuant to this Indenture, which Officers' Certificate may be
signed by any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously delivered
and not superseded.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar, Exchange Agent or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use or application of the proceeds from the Securities, it shall not be
responsible for any statement in the registration statement for the Common Stock
under the Securities Act or in the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults.
If a Default occurs and if it is known to the Trustee, the Trustee
shall give to each Securityholder notice of the Default within 90 days after it
occurs unless such Default shall have been cured or waived before the giving of
such notice. Except in the case of a Default described in Section 6.01(1) or
(2), the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Securityholders. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall transmit to each Securityholder
requesting such, in the manner and to the extent provided in Section 13.02, a
brief report, dated as of such May 15, with respect to:
(1) any change to its eligibility under Section 7.10;
(2) the character and amount of any advances made by the Trustee, as
Trustee, which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior
to that of the Securityholders, on the trust estate or on property or
funds held or collected by it, if such advances so remaining unpaid
aggregate more than one-half of one percent of the aggregate Principal
Amount at Maturity of Securities outstanding on such date;
49
(3) any change to the property and funds physically in the Trustee's
possession as Trustee on the date of such report; and
(4) any action taken by it in the performance of its duties under this
Indenture which it has not previously reported and which in its opinion
materially affects the Securities or the trust estate, except action in
respect of a Default, notice of which has been or is to be withheld by
it in accordance with Section 7.05.
SECTION 7.07 Compensation and Indemnity.
The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited (to the extent permitted by law) by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements of
its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses and
taxes (other than taxes based upon, measured by or determined by the
income of the Trustee)) reasonably incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the
Company or any Holder or any other Person) or liability in connection
with the acceptance, exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.07,
Holders shall have been deemed to have granted to the Trustee a lien prior to
the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay the Principal Amount at Maturity, Issue Price plus
accrued Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price, contingent interest or interest, if any, as the case may
be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(5) or (6), the expenses including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company; provided, however,
no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 7.08. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may remove the Trustee by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of the Company Trustee(s), a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Xxxxxxx does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Xxxxxx.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee and shall have a combined capital and surplus of at least
$50,000,000. If such
51
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then, for the purposes of this Section 7.10,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article 7.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities.
When (i) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.07) for cancellation or
(ii) all outstanding Securities have become due and payable and the Company
deposits with the Trustee, the Paying Agent (if the Paying Agent is not the
Company or any Subsidiary or any Affiliate of either of them) or the Exchange
Agent cash or, if expressly permitted by the terms of the Securities or the
Indenture, Common Stock sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable hereunder
by the Company, then this Indenture shall, subject to Section 7.07, cease to be
of further effect. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person and the Trustee and the Paying Agent shall have no further
liability to the Securityholders with respect to such money or securities for
that period commencing after the return thereof.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Securityholder:
52
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to secure the Company's obligations under the Securities and this
Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the
Company;
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection
with the qualification of the Indenture under the TIA, or as necessary
in connection with the registration of the Securities under the
Securities Act if at any time the Company seeks to register the
Securities thereunder; or
(6) to make any change that does not adversely affect the rights of any
Holder.
Notwithstanding the foregoing, no amendment contemplated pursuant to
clause (1), (3), (4) or (5) of the preceding paragraph may be made without the
written consent of the Holders of at least a majority in aggregate Principal
Amount at Maturity of Securities at the time outstanding if such amendment may
materially and adversely affect the interests of the Holders, it being
understood that no amendment described in clause (1) above made solely to
conform this Indenture to the final offering memorandum provided to investors in
connection with the initial offering of the Securities by the Company will be
deemed to materially and adversely affect the interests of the Holders.
SECTION 9.02 With Consent of Holders.
With the written consent of the Holders of at least a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding, the Company and the Trustee may amend this Indenture or the
Securities. However, without the consent of each Securityholder affected, an
amendment to this Indenture or the Securities may not:
(1) change the provisions of this Indenture that relate to modifying or
amending this Indenture;
(2) make any change in the manner of calculation or rate of accrual of,
or that adversely affects the right to receive, Original Issue
Discount; make any change in the manner of calculation or rate of
accrual of or that adversely affects the right to receive, semiannual
or contingent interest; reduce the rate of interest referred to in
paragraph 1 of the Securities; reduce the rate of interest referred to
in Section 10.01 upon the occurrence of a Tax Event; or extend the time
for payment of Original Issue Discount, semiannual or contingent
interest or interest, if any, on any Security;
(3) reduce the Principal Amount at Maturity, Restated Principal Amount
or the Issue Price of or change the Stated Maturity of any Security;
53
(4) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Security;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Section 6.04, Section 6.07 or this Section 9.02,
except to increase any percentage set forth therein;
(7) make any change that adversely affects the right to exchange any
Security;
(8) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof
and this Indenture; or
(9) impair the right to receive payment with respect to, a Security, or
right to institute suit for the enforcement of any payment with respect
to, or exchange of, the Securities.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 [Reserved]
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the date the amendment, waiver
or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
SECTION 9.05 Notation on or Exchange of Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company
Trustee(s), to any such supplemental indenture may be prepared and executed by
the Company, and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
54
SECTION 9.06 Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article 9 if the amendment contained therein does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 13.04, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
SECTION 9.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
ARTICLE 10
SPECIAL TAX EVENT CONVERSION
SECTION 10.01 Optional Conversion to Semiannual Coupon Note Upon Tax
Event.
From and after (i) the date (the "Tax Event Date") of the occurrence of
a Tax Event or (ii) the date the Company exercises the option provided for in
this Section 10.01, whichever is later (the later of such dates, the "Option
Exercise Date"), at the option of the Company, interest in lieu of future
Original Issue Discount shall accrue at the rate per annum specified in
paragraph 11(a) of the Securities on a restated principal amount per $1,000
original Principal Amount at Maturity (the "Restated Principal Amount") equal to
the Issue Price plus Original Issue Discount accrued through the Option Exercise
Date and shall be payable semiannually on each Interest Payment Date to holders
of record at the close of business on the Regular Record Date immediately
preceding such Interest Payment Date. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months and will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the Option Exercise Date. Within 15 days of the occurrence of a Tax Event,
the Company shall mail a written notice of such Tax Event by facsimile and
first-class mail to the Trustee and within 15 days of its exercise of such
option the Company shall mail a written notice of the Option Exercise Date by
facsimile and first-class mail to the Trustee and by first class mail to the
Holders of the Securities. From and after the Option Exercise Date, (i) the
Company shall be obligated to pay at Stated Maturity in lieu of the Principal
Amount at Maturity of a Security, the Restated Principal Amount thereof plus
accrued and unpaid interest with respect to any Security, (ii) "Issue Price and
accrued Original Issue Discount," "Issue Price plus Original Issue Discount" or
similar words, as used herein, shall mean Restated Principal Amount plus accrued
and unpaid interest with respect to any Security and (iii) contingent interest
shall cease to accrue on the Securities. Securities authenticated and delivered
after the Option Exercise Date may, and shall if required by the Trustee, bear a
notation in a form approved by the Trustee as to the conversion
55
of the Securities to semiannual coupon notes. No other changes to the Indenture
shall result as a result of the events described in this Section 10.01.
ARTICLE 11
EXCHANGE
SECTION 11.01 Exchange Privilege.
A Holder of a Security may exchange such Security into Common Stock at
any time during the period stated in paragraph 9 of the Securities. Upon
determination that Holders are or will be entitled to exchange their Securities
into Common Stock in accordance with paragraph 9 of the Securities, the Company
will issue a press release and publish such determination on the Company's web
site or through such other public medium as the Company may use at that time.
The number of shares of Common Stock deliverable upon exchange of a Security per
$1,000 of Principal Amount at Maturity thereof (the "Exchange Rate") shall be
that set forth in paragraph 9 in the Securities, subject to adjustment as herein
set forth.
A Holder may exchange a portion of the Principal Amount at Maturity of
a Security if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to exchange of all of a Security also
apply to exchange of a portion of a Security.
The Holders' rights to exchange Securities into shares of Common Stock
is subject to the Company's right to elect instead to pay each such Holder the
amount of cash set forth in the next succeeding sentence, in lieu of delivering
such shares of Common Stock; provided, however, that if an Event of Default
(other than a default in a cash payment upon exchange of the Securities) shall
have occurred and be continuing, the Company shall deliver shares of Common
Stock (and cash in lieu of fractional shares of Common Stock) in accordance with
this Article 11, whether or not the Company has delivered a notice pursuant to
Section 3.03 or 11.02 hereof, to the effect that the Securities would be paid in
cash. The amount of cash to be paid pursuant to Section 11.02 hereof for each
$1,000 Principal Amount at Maturity of a Security upon exchange shall be equal
to the average Sale Price of the Common Stock for the five consecutive Trading
Days immediately following (i) the date of the Company's notice of its election
to deliver cash upon exchange, if the Company shall not have given a notice of
redemption pursuant to Section 3.03, or (ii) the Exchange Date, in the case of
an exchange following such a notice of redemption specifying an intent to
deliver cash upon exchange, in either case multiplied by the Exchange Rate in
effect on such Exchange Date. The Company shall not pay cash in lieu of
delivering shares of Common Stock upon the exchange of any Security pursuant to
the terms of this Article 11 (other than cash in lieu of fractional shares
pursuant to Section 11.03 hereof) if there has occurred (prior to, on or after,
as the case may be, the Exchange Date or the date on which the Company delivers
its notice of whether such Security shall be exchanged into Common Stock or cash
pursuant to Section 3.02 hereof) and is continuing an Event of Default (other
than a default in a cash payment upon exchange of such Security).
"Average Sale Price" means the average of the Sale Prices of the Common
Stock for the shorter of
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(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, or
(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 11.06(4),
11.07 or 11.08 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, combination or
reclassification to which Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for 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 Company Trustee(s) to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such period.
"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 11.07 or 11.08 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 New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock is then listed or quoted.
SECTION 11.02 Exchange Procedure.
To exchange a Security a Holder must satisfy the requirements in
paragraph 9 of the Securities. The date on which the Holder satisfies all those
requirements is the exchange date (the "Exchange Date"). The Exchange Agent
shall notify the Company of the Exchange Date within one Business Day of the
Exchange Date. Within two Business Days following the Exchange Date, the Company
shall deliver to the Holder, through the Exchange Agent, written notice of
whether such Security shall be exchanged into shares of Common Stock or paid in
cash, unless the Company shall have delivered such notice previously pursuant to
Section 3.03 of the Indenture. If the Company shall have notified the Holder
that all of such Security shall be
57
exchanged into shares of Common Stock, the Company shall deliver to the Holder
through the Exchange Agent, as promptly as practicable but in any event no later
than the fifth Business Day following the date of the Company's notice of its
election to deliver shares of Common Stock a certificate for the number of full
shares of Common Stock deliverable upon the exchange and cash in lieu of any
fractional share determined pursuant to Section 11.03 hereof. Except as provided
in the last sentence in the third paragraph of Section 11.01 hereof, if the
Company shall have notified the Holder that all or a portion of such Security
shall be paid in cash, the Company shall deliver to the Holder surrendering such
Security the amount of cash payable with respect to such Security no later than
the tenth Business Day following such Exchange Date, together with a certificate
for the number of full shares of Common Stock deliverable upon the exchange and
cash in lieu of any fractional share determined pursuant to Section 11.03
hereof. Except as provided in the last sentence in the third paragraph of
Section 11.01 hereof, the Company may not change its election with respect to
the consideration to be delivered upon exchange of a Security once the Company
has notified the Holder in accordance with this paragraph. If shares of Common
Stock are delivered as consideration, then the person in whose name the
certificate representing such shares is registered shall be treated as a
stockholder of record on and after the Exchange Date; provided, however, that no
surrender of a Security on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the person or persons entitled
to receive the shares of Common Stock upon such exchange as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the person or persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; such exchange shall be at the Exchange Rate in effect on the date that
such Security shall have been surrendered for exchange, as if the stock transfer
books of the Company had not been closed. Upon exchange of a Security, such
person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 11. On exchange of a Security, the greater of that portion of accrued
Original Issue Discount (or interest, if the Company has exercised its option
provided for in Section 10.01) or tax OID attributable to the period from the
Issue Date (or, if the Company has exercised the option provided for in Section
10.01, the later of (x) the date of such exercise and (y) the date on which
interest was last paid) of the Security through but not including the Exchange
Date and (except as provided below) accrued interest with respect to the
exchanged Security 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
Common Stock (together with the cash payment, if any, in lieu of fractional
shares) and/or cash, if any, to the extent of the value thereof in exchange for
the Security being exchanged pursuant to the provisions hereof (except to the
extent that semiannual and contingent interest are paid in cash as provided in
paragraph 9 of the Securities); and such cash, if any, and/or the fair market
value of such shares of Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as delivered, to the extent thereof,
first in exchange for Original Issue Discount (or interest, if the Company has
exercised its option provided for in Section 10.01) accrued through the Exchange
Date and accrued contingent interest, and the balance, if any, of such cash
and/or the fair market value of such Common Stock (and any such cash
58
payment in lieu of fractional shares) shall be treated as delivered in exchange
for the Issue Price of the Security being exchanged pursuant to the provisions
hereof.
If the Holder exchanges more than one Security at the same time, the
number of shares of Common Stock deliverable upon the exchange shall be based on
the total Principal Amount at Maturity of the Securities exchanged.
If the last day on which a Security may be exchanged is a Legal
Holiday, the Security may be surrendered on the next succeeding day that is not
a Legal Holiday.
Upon surrender of a Security that is exchanged in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount at Maturity
to the unexchanged portion of the Security surrendered.
SECTION 11.03 Fractional Shares.
The Company will not deliver a fractional share of Common Stock upon
exchange of a Security. Instead, the Company will deliver cash for the current
market value of the fractional share. 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 of the Common Stock, on the last Trading Day prior to the
Exchange Date, of a full share by the fractional amount and rounding the product
to the nearest whole cent.
SECTION 11.04 Taxes on Exchange.
If a Holder exchanges a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the delivery of
shares of Common Stock upon the exchange. However, the Holder shall pay any such
tax which is due because the Holder requests the shares to be delivered in a
name other than the Holder's name. The Exchange Agent may refuse to deliver the
certificates representing the Common Stock being delivered in a name other than
the Holder's name until the Exchange Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be delivered in a name other
than the Holder's name. Nothing herein shall preclude any tax withholding
required by law or regulations.
SECTION 11.05 Validity of Common Stock.
All shares of Common Stock delivered upon exchange of the Securities
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 comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon exchange of
Securities, 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 Common Stock is then listed or quoted.
59
SECTION 11.06 Adjustment for Change In Capital Stock.
If, after the Issue Date of the Securities, the Parent:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or shares of other Capital Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares; or
(4) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock);
then the exchange privilege and the Exchange Rate in effect immediately prior to
such action shall be adjusted so that the Holder of a Security thereafter
exchanged may receive the number of shares of Capital Stock of the Parent which
such Holder would have owned immediately following such action if such Holder
had exchanged the Security immediately prior to 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 Security upon exchange of such
Security may receive shares of two or more classes of Capital Stock of the
Parent, the Exchange 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 11 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 11.
SECTION 11.07 Adjustment for Rights Issue.
If after the Issue Date of the Securities, the Parent distributes any
rights, warrants or options to all holders of its Common Stock entitling them,
for a period expiring within 60 days after the record date for such
distribution, to purchase shares of Common Stock at a price per share less than
the Sale Price of the Common Stock as of the Time of Determination, the Exchange
Rate shall be adjusted in accordance with the formula:
R' = R x (O + N)
------------------
(O + (N x P)/M)
where:
R' = the adjusted Exchange Rate.
60
R = the current Exchange Rate.
O = the number of shares of Common Stock outstanding on the record date for
the distribution to which this Section 11.07 is being applied.
N = the number of additional shares of Common Stock offered pursuant to the
distribution.
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 11.06(4) applies or (ii) a distribution to which Section 11.08
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 11.07 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 11.07 applies, the fair
market value (on the record date for the distribution to which this Section
11.07 applies) of the
(1) Capital Stock of the Parent distributed in respect of each share of
Common Stock in such Section 11.06(4) distribution and
(2) assets of the Parent or debt securities or any rights, warrants or
options to purchase securities of the Parent distributed in respect of
each share of Common Stock in such Section 11.08 distribution.
The Company Trustee(s) shall determine fair market values for the purposes
of this Section 11.07.
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 11.07 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 Exchange Rate shall promptly be
readjusted to the Exchange 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 11.07 if the application
of the formula stated above in this Section 11.07 would result in a value of R'
that is equal to or less than the value of R.
SECTION 11.08 Adjustment for Other Distributions.
(a) If, after the Issue Date of the Securities, the Parent distributes
to all holders of its Common Stock any of its assets excluding distributions of
Capital Stock or equity interests referred to in Section 11.08(b), or debt
securities or any rights, warrants or options to purchase securities of the
Parent (including securities or cash, but excluding (x) distributions of Capital
Stock referred to in Section 11.06 and distributions of rights, warrants or
options referred to in Section 11.07 and (y) cash dividends or other cash
distributions that are paid out of
61
consolidated current net earnings or earnings retained in the business as shown
on the books of the Parent unless such cash dividends or other cash
distributions are Extraordinary Cash Dividends), the Exchange Rate shall be
adjusted, subject to the provisions of Section 11.08(c), in accordance with the
formula:
R' = R x M
-----
M-F
where:
R' = the adjusted Exchange Rate.
R = the current Exchange Rate.
M = the Average Sale Price, minus, in the case of a distribution to which
Section 11.06(4) applies, for which (i) the record date shall occur on or before
the record date for the distribution to which this Section 11.08(a) applies and
(ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.08(a) applies, the
fair market value (on the record date for the distribution to which this Section
11.08(a) applies) of any Capital Stock of the Parent distributed in respect of
each share of Common Stock in such Section 11.06(4) distribution.
F = the fair market value (on the record date for the distribution to which
this Section 11.08(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 Section 11.08(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).
The Company Trustee(s) shall determine fair market values for the
purposes of this Section 11.08(a).
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 11.08(a) applies.
For purposes of this Section 11.08(a), the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Common Stock the
amount of which, together with the aggregate amount of cash dividends on the
Common Stock to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentage set
forth in item (i) below. For purposes of item (i) below, the "Measurement
Period" with respect to a cash dividend on the Common Stock shall mean the 365
consecutive day period ending on the date prior to the Ex-Dividend Time with
respect to such cash dividend, and the "Relevant Cash Dividends" with respect to
a cash dividend on the Common Stock shall mean the cash dividends on the Common
Stock with Ex-Dividend Times occurring in the Measurement Period.
62
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all Relevant Cash Dividends
equals or exceeds on a per share basis 5% of the Sale Price of the
Common Stock on the last Trading Day preceding the date of declaration
by the Board of Directors of the cash dividend or distribution with
respect to which this provision is being applied, then such cash
dividend together with all Relevant Cash Dividends, shall be deemed to
be an Extraordinary Cash Dividend and for purposes of applying the
formula set forth above in this Section 11.08(a), the value of "F"
shall be equal to (y) the aggregate amount of such cash dividend
together with the amount of all Relevant Cash Dividends, minus (z) the
aggregate amount of all Relevant Cash Dividends for which a prior
adjustment in the Exchange Rate was previously made under this Section
11.08(a).
In making the determinations required by item (i) above, the amount of
cash dividends paid on a per share basis and the amount of any Relevant
Cash Dividends specified in item (i) above, shall be appropriately
adjusted to reflect the occurrence during such period of any event
described in Section 11.06.
(b) If, after the Issue Date of the Securities, the Parent 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 Parent (including,
without limitation, of the Company) the Exchange Rate shall be adjusted in
accordance with the formula:
R' = R x (1 + F/M)
where:
R' = the adjusted Exchange Rate.
R = the current Exchange 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 for which this Section 11.08(b) shall mean the number of
securities distributed in respect of each share of Common Stock multiplied by
the average of the Post-Distribution Prices of those securities distributed 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
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
63
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 National Association of Securities Dealers
Automated Quotation 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 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 "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 National Association of Securities Dealers
Automated Quotation 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 11.08(a) would otherwise apply, the difference "M-F" as defined in the
formula set forth in Section l1.08(a) is less than $1.00 or "F" is equal to or
greater than "M", then the adjustment provided by Section 11.08(a) shall not be
made and in lieu thereof the provisions of Section 11.14 shall apply to such
distribution.
SECTION 11.09 When Adjustment May Be Deferred.
No adjustment in the Exchange Rate need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exchange Rate. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be.
SECTION 11.10 When No Adjustment Required.
No adjustment need be made for a transaction referred to in Section
11.06, 11.07, 11.08 or 11.14 if Securityholders are to participate in the
transaction on a basis and with notice that the Company Trustee(s) determines to
be fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction. Such participation by
Securityholders may include participation upon exchange provided that an
adjustment shall be made at such time as the Securityholders are no longer
entitled to participate.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Parent plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
64
To the extent the Securities become exchangeable pursuant to this
Article 11 into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
SECTION 11.11 Notice of Adjustment.
Whenever the Exchange Rate is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment. The Company shall file with the
Trustee and the Exchange Agent such notice and a certificate from the Company's
independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct. Neither the Trustee nor any Exchange
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 11.12 Voluntary Increase.
The Company from time to time may increase the Exchange Rate by any
amount for any period of time. Whenever the Exchange Rate is increased, the
Company shall mail to Securityholders and file with the Trustee and the Exchange
Agent a notice of the increase. The Company shall mail the notice at least 15
days before the date the increased Exchange Rate takes effect. The notice shall
state the increased Exchange Rate and the period it will be in effect.
A voluntary increase of the Exchange Rate does not change or adjust the
Exchange Rate otherwise in effect for purposes of Section 11.06, 11.07 or 11.08.
SECTION 11.13 Notice of Certain Transactions.
If:
(1) the Parent takes any action that would require an adjustment in the
Exchange Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Parent or the Company;
then the Company shall mail to Securityholders and file with the
Trustee and the Exchange Agent a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
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 11.14 Reorganization of Parent; Special Distributions.
If the Parent is a party to a consolidation, merger, or binding share
exchange pursuant to which all of the outstanding Common Stock of the Parent
would be converted into
65
cash, securities or other property, a Holder of a Security shall have the right
to exchange such Security at any time from and after the date which is 15 days
prior to the date the Parent announces as the anticipated effective time of the
transaction until 15 days after the actual effective date of such transaction,
and at the effective time of such transaction, the right to exchange a Security
into Common Stock will be deemed to have changed into a right to exchange it
into the kind and amount of cash, securities or other property of the Parent or
another person which such Holder would have received immediately after the
consolidation, merger or binding share exchange if such Holder had exchanged the
Security 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 rate at which Securities may be exchanged into such
cash, securities or other property shall be subject to adjustments which shall
be as nearly equivalent as may be practical to the adjustments provided for in
this Article 11. The Company shall mail to Securityholders a notice briefly
describing the transaction and any modification of the exchange rights of the
Holders as contemplated hereby.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Parent makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Parent that, but for the provisions of Section
11.08(c), would otherwise result in an adjustment in the Exchange Rate pursuant
to the provisions of Section 11.08, then, from and after the record date for
determining the holders of Common Stock entitled to receive the distribution, a
Holder of a Security that exchanges such Security in accordance with the
provisions of this Indenture shall upon such exchange be entitled to receive, in
addition to the shares of Common Stock into which the Security is exchangeable,
the kind and amount of securities, cash or other assets comprising the
distribution that such Holder would have received if such Holder had exchanged
the Security immediately prior to the record date for determining the holders of
Common Stock entitled to receive the distribution.
SECTION 11.15 Company Determination Final.
Any determination that the Company or the Company Trustee(s) must make
pursuant to Section 11.03, 11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is
conclusive.
SECTION 11.16 Trustee's Adjustment Disclaimer.
The Trustee has no duty to determine when an adjustment under this
Article 11 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
11.14 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 delivered
upon exchange of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article 11. Each Exchange Agent shall have
the same protection under this Section 11.16 as the Trustee.
66
SECTION 11.17 Simultaneous Adjustments.
In the event that this Article 11 requires adjustments to the Exchange
Rate under more than one of Sections 11.06(4), 11.07 or 11.08, 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 11.06, second, the provisions of Section 11.08 and, third,
the provisions of Section 11.07.
SECTION 11.18 Successive Adjustments.
After an adjustment to the Exchange Rate under this Article 11, any
subsequent event requiring an adjustment under this Article 11 shall cause an
adjustment to the Exchange Rate as so adjusted.
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments.
Semiannual or contingent interest on any Security that is payable, and
is punctually paid or duly provided for, on any applicable payment date shall be
paid to the person in whose name that Security is registered at the close of
business on the Regular Record Date or accrual date, as the case may be, for
such interest at the office or agency of the Company maintained for such
purpose. Each installment of semiannual or contingent interest payable in cash
on any Security shall be paid in same-day funds by transfer to an account
maintained by the payee located inside the United States, if the Trustee shall
have received proper wire transfer instructions from such payee not later than
the related Regular Record Date or accrual date, as the case may be, or, if no
such instructions have been received by check drawn on a bank in The City of New
York mailed to the payee at its address set forth on the Registrar's books. In
the case of a permanent Global Security, semiannual or contingent interest
payable on any applicable payment date will be paid to the Depositary, with
respect to that portion of such permanent Global Security held for its account
by Cede & Co. for the purpose of permitting such party to credit the interest
received by it in respect of such permanent Global Security to the accounts of
the beneficial owners thereof.
SECTION 12.02 Defaulted Interest.
Except as otherwise specified with respect to the Securities, any
semiannual or contingent interest on any Security that is payable, but is not
punctually paid or duly provided for, within 30 days following any applicable
payment date (herein called "Defaulted Interest", which term shall include any
accrued and unpaid interest that has accrued on such defaulted amount in
accordance with paragraph 1 of the Securities), shall forthwith cease to be
payable to the registered Holder thereof on the relevant Regular Record Date or
accrual date, as the case may be, by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
67
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment
(the "Special Record Date"). The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities at his
address as it appears on the list of Securityholders maintained
pursuant to Section 2.05 not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names the
Securities are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if;
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 12.03 Interest Rights Preserved.
Subject to the foregoing provisions of this Article 12 and Section
2.06, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
semiannual and contingent interest accrued and unpaid, and to accrue, which were
carried by such other Security.
68
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 [Reserved]
SECTION 13.02 Notices; Address of Agency in Manhattan.
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:
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Chief Legal Officer
if to the Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Institutional Trust Services
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Exchange
Agent or co-registrar.
69
The initial office or agency of the Company in the Borough of Manhattan
as required by Section 4.05 shall be:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Institutional Trust Services
SECTION 13.03 [Reserved]
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
70
SECTION 13.06 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.07 Rules by Trustee, Payer Agent, Exchange Agent and
Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Exchange Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 13.08 Calculations.
The calculation of the Purchase Price, Change in Control Purchase
Price, Exchange Rate, Market Price, Sale Price of the Common Stock and each
other calculation to be made hereunder (other than the LYON Market Price) shall
be the obligation of the Company. All calculations made by the Company as
contemplated pursuant to this Section 13.08 shall be final and binding on the
Company and the Holders absent manifest error. The Trustee, Paying Agent,
Exchange Agent and Bid Solicitation Agent shall not be obligated to recalculate,
recompute or confirm any such calculations.
SECTION 13.09 Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action shall be taken on the next succeeding day that is not a Legal Holiday,
and, if the action to be taken on such date is a payment in respect of the
Securities, no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 13.10 GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE
SECURITIES.
SECTION 13.11 No Recourse Against Others.
The Company is a business trust and its Declaration of Trust limits the
personal liability of its shareholders, trustees, and officers and employees.
For satisfaction of claims against and obligations of the Company of any nature
arising out of this Indenture or otherwise in connection with the affairs of the
Company, the Trustee shall look solely to the trust property of the Company and
it shall not seek redress or satisfaction for such claims or obligations from
any shareholder, trustee, officer, or employee of the Company (except in each
case as may be otherwise expressly agreed in writing by any such person). By
accepting a Security, each Securityholder shall also waive and release all such
liability of the shareholders, trustees, officers, or employees of the Company.
The waiver and release shall be part of the consideration for the issue of the
Securities.
71
SECTION 13.12 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.13 Multiple Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
72
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
XXXXX XXXXX MANAGEMENT
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By
-------------------------------------
Name:
Title:
73
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS AUGUST 13,
2001, AND THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT
IS 6.76% PER ANNUM. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT
SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO XXXXX XXXXX
MANAGEMENT, 000 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX 00000: ATTENTION: XXXXXXX X.
XXXXX.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS 1N
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF NON-VOTING COMMON STOCK DELIVERABLE
UPON EXCHANGE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY, THE SHARES OF NON-VOTING COMMON STOCK DELIVERABLE UPON
EXCHANGE OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER
(A-1) F-1
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH XXXXX
XXXXX MANAGEMENT (THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO XXXXX XXXXX CORP.'S, THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
(A-1) F-2
XXXXX XXXXX MANAGEMENT
Liquid Yield Option(TM) Note due 2031
(Zero Coupon-Senior)
No. R- CUSIP: 27827W AA 1
Issue Date: August 13, 2001 Original Issue Discount: $361.30
Issue Price: $638.70 (for each $1,000 Principal
(for each $1,000 Principal Amount at Maturity)
Amount at Maturity)
XXXXX XXXXX MANAGEMENT, a Massachusetts business trust, promises to pay
to Cede & Co. or registered assigns, the Principal Amount at Maturity of [____]
DOLLARS ($[____]) on August 13, 2031.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is exchangeable as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: August 13, 2001 XXXXX XXXXX MANAGEMENT
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Chase Manhattan Bank,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By:
----------------------------------
Authorized Officer
(A-1) F-3
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option(TM) Note due 2031
(Zero Coupon-Senior)
1. Interest.
This Security shall not bear interest, except as specified in this
paragraph or in paragraphs 5 and 11 hereof. If the Principal Amount at Maturity
hereof or any portion of such Principal Amount at Maturity is not paid when due
(whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the
date set for payment of the Redemption Price pursuant to paragraph 6 hereof,
upon the date set for payment of the Purchase Price or Change in Control
Purchase Price pursuant to paragraph 7 hereof or upon the Stated Maturity of
this Security) or if interest (including semiannual or contingent interest, if
any) due hereon or any portion of such interest is not paid when due in
accordance with paragraph 5 or 11 hereof, then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at the rate of 1.50%
per annum, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 1.50% per annum, on a semiannual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
from the Issue Date of this Security.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Change in
Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. The Company will pay any 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, Registrar and Bid Solicitation Agent.
Initially, The Chase Manhattan Bank, a New York banking corporation
(the "Trustee"), will act as Paying Agent, Exchange Agent, Registrar and Bid
Solicitation Agent. The Company may appoint and change any Paying Agent,
Exchange Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee except that the Company will maintain
at least one Paying Agent in the State of New York, The 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, Exchange Agent, Registrar or
(A-1) R-1
co-registrar. None of the Company, any of its Subsidiaries or any of their
Affiliates shall act as Bid Solicitation Agent.
4. Indenture.
The Company issued the Securities under an Indenture dated as of August
13, 2001 (the "Indenture"), between the Company and the Trustee. 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 for a statement of those terms.
The Securities are general unsecured and unsubordinated obligations of
the Company limited to $314,000,000 aggregate Principal Amount at Maturity
(subject to Section 2.07 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Contingent Interest.
Subject to the accrual and record date provisions specified in this
paragraph 5, the Company shall pay contingent interest to the Holders during any
six-month period (a "Contingent Interest Period") from August 14 to February 13
and from February 14 to August 13, commencing August 14, 2006, if the average
LYON Market Price for the Five-Day Period with respect to such Contingent
Interest Period equals 120% or more of the sum of the Issue Price of a Security
and Original Issue Discount accrued thereon to the day immediately preceding the
first day of the relevant Contingent Interest Period.
The amount of contingent interest payable per $1,000 Principal Amount
at Maturity hereof in respect of any Quarterly Period within a Contingent
Interest Period shall equal the greater of (x) Regular Cash Dividends paid by
the Parent per share of Common Stock during that Quarterly Period multiplied by
the number of shares of Common Stock into which $1,000 Principal Amount at
Maturity hereof is exchangeable pursuant to paragraph 9 hereof as of the accrual
date for such contingent interest or (y) $0.06 multiplied by 14.3657.
Contingent interest, if any, will accrue and be payable to Holders as of
the record date for the related Regular Cash Dividend or, if no Regular Cash
Dividend is paid by the Parent during a Quarterly Period, to Holders as of the
15th day (whether or not a Business Day) preceding the last day of the relevant
Contingent Interest Period. Such payments shall be paid on the payment date of
the related Regular Cash Dividend or, if no Regular Cash Dividend is paid by the
Parent during any Quarterly Period, on the last day of the relevant Contingent
Interest Period. Original Issue Discount will continue to accrue at 1.50% per
annum whether or not contingent interest is paid.
"Five-Day Period" means, with respect to any Contingent Interest
Period, the five Trading Days ending on the second Trading Day immediately
preceding the first day of such Contingent Interest Period; provided, however,
if the Parent shall have declared a Regular Cash Dividend on its Common Stock
that is payable during such Contingent Interest Period but for which the record
date for determining stockholders entitled thereto precedes the first day of
such
(A-1) R-2
Contingent Interest Period, then "Five-Day Period" shall mean, with respect to
such Contingent Interest Period, the five Trading Days ending on the second
Trading Day immediately preceding such record date.
"Regular Cash Dividends" means quarterly or other periodic cash
dividends on the Parent's Common Stock as declared by the Parent's Board of
Directors as part of its cash dividend payment practices and that are not
designated by them as extraordinary or special or other nonrecurring dividends.
"LYON Market Price" means, as of any date of determination, the average
of the secondary market bid quotations per $1,000 Principal Amount at Maturity
obtained by the Bid Solicitation Agent for $10 million Principal Amount at
Maturity of Securities at approximately 4:00 p.m., New York City time, on such
determination date from three recognized securities dealers in The City of New
York (none of which shall be an Affiliate of the Company) selected by the
Company; provided, however, if (a) at least three such bids are not obtained by
the Bid Solicitation Agent or (b) in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities as
of such determination date, then the LYON Market Price for such determination
date shall equal (i) the Exchange Rate in effect as of such determination date
multiplied by (ii) the average Sale Price of the Common Stock for the five
Trading Days ending on such determination date, appropriately adjusted to take
into account the occurrence, during the period commencing on the first of such
Trading Days during such five Trading Day period and ending on such
determination date, of any event described in Section 11.06, 11.07 or 11.08
(subject to the conditions set forth in Sections 11.09 and 11.10) of the
Indenture.
The term "Quarterly Period" shall mean, with respect to any Contingent
Interest Period, any quarterly period within such Contingent Interest Period
extending from August 14 to November 13, from November 14 to February 13, from
February 14 to May 13 or from May 14 to August 13.
Upon determination that Holders will be entitled to receive contingent
interest which may become payable during a Contingent Interest Period, on or
prior to the first day of such Contingent Interest Period, the Company shall
promptly notify the Trustee of such determination and shall issue a press
release and publish such information on its web site on the World Wide Web or
through such other public medium as the Company may use at that time. The
Company shall also notify the Trustee of the declaration of any Regular Cash
Dividends and the related record and payment dates.
6. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company in accordance with the Indenture at the Redemption Prices set
forth below, provided that the Securities are not redeemable prior to August 13,
2006.
(A-1) R-3
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect accrued Original Issue Discount calculated to each such
date. The Redemption Price of a Security redeemed between such dates shall
include an additional amount reflecting the additional Original Issue Discount
accrued since the preceding date in the table but not including the Redemption
Date.
(2) (3)
(1) Accrued Redemption
LYON Original Price
Issue Date Issue Discount (1)+(2)
Redemption Date ---------- --------------- ------------
August 13:
2006 $638.70 $49.55 $688.25
2007 $638.70 $59.91 $698.61
2008 $638.70 $70.43 $709.13
2009 $638.70 $81.11 $719.81
2010 $638.70 $91.95 $730.65
2011 $638.70 $102.95 $741.65
2012 $638.70 $114.11 $752.81
2013 $638.70 $125.45 $764.15
2014 $638.70 $136.95 $775.65
2015 $638.70 $148.63 $787.33
2016 $638.70 $160.49 $799.19
2017 $638.70 $172.52 $811.22
2018 $638.70 $184.73 $823.43
2019 $638.70 $197.13 $835.83
2020 $638.70 $209.72 $848.42
2021 $638.70 $222.49 $861.19
2022 $638.70 $235.46 $874.16
2023 $638.70 $248.62 $887.32
2024 $638.70 $261.98 $900.68
2025 $638.70 $275.54 $914.24
2026 $638.70 $289.30 $928.00
2027 $638.70 $303.28 $941.98
2028 $638.70 $317.46 $956.16
2029 $638.70 $331.85 $970.55
2030 $638.70 $346.47 $985.17
At Stated Maturity $638.70 $361.30 $1,000.00
If this Security has been converted to a semiannual coupon note
following the occurrence of a Tax Event, the Redemption Price will be equal to
the Restated Principal Amount plus accrued and unpaid interest from the date of
such conversion to but not including the Redemption Date.
(A-1) R-4
In addition to the Redemption Price payable with respect to all
Securities or portions thereof to be redeemed as of a Redemption Date, the
Holders of such Securities (or portions thereof) shall be entitled to receive
accrued and unpaid contingent interest, if any, with respect thereto, which
interest shall be paid in cash on the Redemption Date.
7. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Maturity, upon delivery of a Purchase
Notice containing the information set forth in the Indenture, at any time from
the opening of business on the date that is 20 Business Days prior to such
Purchase Date until the close of business on such Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in the
Indenture.
Purchase Date Purchase Price
------------- --------------
August 13: 2002 $648.32
2004 667.99
2006 688.25
2011 741.65
2016 799.19
2021 861.19
2026 928.00
The Purchase Price (equal to the Issue Price plus accrued Original
Issue Discount to the Purchase Date) may be paid, at the option of the Company,
in cash or by the delivery of shares of Common Stock of the Parent, or in any
combination thereof.
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion to the Purchase Date.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder no later than 35 Business Days after the occurrence of a
Change in Control, but in no event prior to the date on which such Change in
Control occurs, on or prior to August 13, 2006 for a Change in Control Purchase
Price equal to the Issue Price plus accrued Original Issue Discount to the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash.
If prior to a Change in Control Purchase Date this Security has been
converted to a semiannual coupon note following the occurrence of a Tax Event,
the Change in Control Purchase Price shall be equal to the Restated Principal
Amount plus accrued and unpaid interest from the date of conversion to the
Change in Control Purchase Date.
(A-1) R-5
A third party may make the offer and purchase of the Securities in lieu
of the Company in accordance with the Indenture.
In addition to the Purchase Price or Change in Control Purchase Price,
as the case may be, payable with respect to all Securities or portions thereof
to be purchased as of the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Holders of such Securities (or portions thereof) shall
be entitled to receive accrued and unpaid contingent interest, if any, with
respect thereto, which contingent interest shall be paid in cash promptly
following the later of the Purchase Date or the Change in Control Purchase Date,
as the case may be and the time of delivery of such Securities to the Paying
Agent pursuant to the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Purchase Price or Change in Control Purchase Price, as the case may
be, of, together with any accrued and unpaid contingent interest with respect
to, all Securities or portions thereof to be purchased as of the Purchase Date
or the Change in Control Purchase Date, as the case may be, is deposited with
the Paying Agent on the Business Day following the Purchase Date or the Change
in Control Purchase Date, as the case may be, Original Issue Discount and
interest (including semiannual and contingent interest), if any, shall cease to
accrue on such Securities (or portions thereof) immediately after such Purchase
Date or Change in Control Purchase Date, as the case may be, and the Holder
thereof shall have no other rights as such (other than the right to receive the
Purchase Price or Change in Control Purchase Price, as the case may be, and
accrued and unpaid contingent interest, if any, upon surrender of such
Security).
8. Notice of Redemption.
Notice of redemption will be mailed at least 15 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, and accrued and unpaid contingent interest, if any, with respect to,
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, on such
Redemption Date, Original Issue Discount and interest (including semiannual and
contingent interest), if any, shall cease to accrue on such Securities or
portions thereof. Securities in denominations larger than $1,000 of Principal
Amount at Maturity may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount at Maturity.
9. Exchange.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, Holders may
surrender this Security for exchange into shares of Common Stock on an Exchange
Date in any fiscal quarter of the Parent commencing after October 31, 2001, if,
as of the last day of the preceding fiscal quarter, the Sale Price of the Common
Stock for at least 20 Trading Days in a period of 30 consecutive Trading
(A-1) R-6
Days ending on the last Trading Day of such preceding fiscal quarter is greater
than the exchange trigger price. The "exchange trigger price" for any fiscal
quarter shall be a reference percentage, beginning at 120%, and declining 0.084%
per fiscal quarter thereafter, of the accreted exchange price per share of
Common Stock on the last Trading Day of such preceding fiscal quarter.
The "accreted exchange price" per share of Common Stock as of any day
equals the quotient of:
o the Issue Price and accrued Original Issue Discount to that
day, divided by
o the number of shares of Common Stock deliverable upon exchange
of $1,000 Principal Amount at Maturity of Securities on that
day.
For illustrative purposes only, the table below shows the exchange
trigger price per share of Common Stock in respect of each of the first 20
fiscal quarters. These prices reflect the accreted exchange price per share of
Common Stock (assuming that no events occurred requiring an adjustment to the
initial Exchange Rate of 14.3657 shares of Common Stock per $1,000 Principal
Amount at Maturity) multiplied by the applicable percentage for the respective
fiscal quarter. Thereafter, the accreted exchange price per share of Common
Stock increases each fiscal quarter by the accrued Original Issue Discount for
the quarter and the applicable percentage declines by 0.084% per quarter.
(A-1) R-7
(3)
(1) Exchange
Accreted (2) Trigger
Exchange Applicable Price
Quarter* Price Percentage (1)X(2)
----------- ----------- -----------
2002
First Quarter ................ $44.60 120.000% $53.53
Second Quarter................ $44.77 119.916% $53.69
Third Quarter................. $44.94 119.832% $53.85
Fourth Quarter................ $45.11 119.748% $54.01
2003
First Quarter ................ $45.28 119.664% $54.18
Second Quarter................ $45.45 119.580% $54.34
Third Quarter................. $45.62 119.496% $54.51
Fourth Quarter................ $45.79 119.412% $54.67
2004
First Quarter ................ $45.96 119.328% $54.84
Second Quarter................ $46.13 119.244% $55.07
Third Quarter................. $46.30 119.160% $55.17
Fourth Quarter................ $46.48 119.076% $55.34
2005
First Quarter ................ $46.65 118.992% $55.51
Second Quarter................ $46.82 118.908% $55.68
Third Quarter................. $47.00 118.824% $55.85
Fourth Quarter................ $47.18 118.740% $56.02
2006
First Quarter ................ $47.35 118.656% $56.19
Second Quarter................ $47.53 118.572% $56.36
Third Quarter................. $47.71 118.488% $56.53
Fourth Quarter................ $47.89 118.404% $56.70
Subject to the provisions of this paragraph 9 and notwithstanding the
fact any other condition to exchange has not been satisfied, if at any time
either Rating Agency has issued a rating on the Securities, Holders may exchange
the Securities into Common Stock on an Exchange Date during any period in which
the credit rating assigned to the Securities by a Rating Agency is three or more
rating subcategories below the credit rating initially assigned to the
Securities by such Rating Agency. "Rating Agency" means either or both of (1)
Xxxxx'x Investors Service, Inc. and its successors, and (2) Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies Inc., and its
successors.
(A-1) R-8
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, a Holder may
exchange into Common Stock a Security or portion of a Security which has been
called for redemption pursuant to paragraph 6 hereof, but such Securities may be
surrendered for exchange only until the close of business on the second Business
Day immediately preceding the Redemption Date.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, in the event
that the Parent declares a dividend or distribution described in Section 11.07
of the Indenture, or a dividend or a distribution described in Section 11.08 of
the Indenture where the fair market value of such dividend or distribution per
share of Common Stock, as determined pursuant to the Indenture, exceeds 15% of
the Sale Price of the Common Stock on the Business Day immediately preceding the
date of declaration for such dividend or distribution, the Company will be
required to give notice to the Holders of the Securities at least 20 days prior
to the Ex-Dividend Time for such dividend or distribution, and Securities may be
surrendered for exchange at any time thereafter until the close of business on
the Business Day prior to the Ex-Dividend Time or until the Parent announces
that such dividend or distribution will not take place.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, in the event
the Parent is a party to a consolidation, merger or binding share exchange
pursuant to which the Common Stock would be converted into cash, securities or
other property as set forth in Section 11.14 of the Indenture, the Securities
may be surrendered for exchange at any time from and after the date which is 15
days prior to the date the Parent announces as the anticipated effective time of
the transaction until 15 days after the actual effective date of such
transaction, and at the effective time of such transaction the right to exchange
a Security into Common Stock will be deemed to have changed into a right to
exchange it into the kind and amount of cash, securities or other property of
the Parent or another person which the Holder would have received if the Holder
had exchanged its Security immediately prior to the transaction.
A Security in respect of which a Holder has delivered a Purchase Notice
or Change in Control Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be exchanged only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Exchange Rate is 14.3657 shares of Common Stock per $1,000
Principal Amount at Maturity, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
In the event the Company exercises its option pursuant to Section 10.01
of the Indenture to have interest in lieu of Original Issue Discount accrue on
the Security following a Tax Event, the Holder will be entitled on exchange to
receive the same number of shares of Common Stock such Holder would have
received if the Company had not exercised such option.
Accrued and unpaid semiannual and contingent interest will not be paid
in cash on Securities that are exchanged but will be paid in the manner provided
in the following paragraph;
(A-1) R-9
provided, however that Securities surrendered for exchange during the period, in
the case of semiannual interest, from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date or, in the case of contingent interest, from the
close of business on any date on which contingent interest accrues to the
opening of business on the date on which such contingent interest is payable,
shall be entitled to receive such semiannual or contingent interest, as the case
may be, payable on such Securities on the corresponding Interest Payment Date or
the date on which such contingent interest is payable and (except Securities
with respect to which the Company has mailed a notice of redemption) Securities
surrendered for exchange during such periods must be accompanied by payment of
an amount equal to the semiannual or contingent interest with respect thereto
that the registered Holder is to receive.
A Holder may exchange a portion of a Security if the Principal Amount
at Maturity of such portion is $1,000 or an integral multiple of $1,000. No
payment or adjustment will be made for dividends on the Common Stock except as
provided in the Indenture. On exchange of a Security, the greater of that
portion of accrued Original Issue Discount (or interest if the Company has
exercised its option provided for in paragraph 11(a) hereof) or Tax OID
attributable to the period from the Issue Date (or, if the Company has exercised
the option referred to in paragraph 11(a) hereof, the later of (x) the date of
such exercise and (y) the date on which interest was last paid) through the
Exchange Date and (except as provided above) accrued contingent interest with
respect to the exchanged Security shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through the delivery of the Common Stock (together with the cash payment, if
any, in lieu of fractional shares) and/or cash, if any, to the extent of the
value thereof in exchange for the Security being exchanged pursuant to the terms
hereof; and such cash, if any, and/or the fair market value of such shares of
Common Stock (together with any such cash payment in lieu of fractional shares)
shall be treated as exchanged, to the extent thereof, first in exchange for
Original Issue Discount (or interest, if the Company has exercised its option
provided for in paragraph 11(a) hereof) accrued through the Exchange Date and
accrued contingent interest, and the balance, if any, of such cash and/or the
fair market value of such Common Stock (and any such cash payment in lieu of
fractional shares) shall be treated as delivered in exchange for the Issue Price
of the Security being exchanged pursuant to the provisions hereof.
To exchange a Security, a Holder must (1) complete and manually sign
the exchange notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Exchange Agent, (2) surrender the
Security to the Exchange Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Exchange Agent, the Company or the Trustee
and (4) pay any transfer or similar tax, if required.
The Exchange Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days of the record date for such distribution at less than
the Sale Price of the Common Stock at the Time of Determination; and
distributions to such holders of assets (including shares of Capital Stock of a
Subsidiary) or debt securities of the Parent or certain rights to purchase
securities of the Parent (excluding
(A-1) R-10
certain cash dividends or distributions). However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.
The Company from time to time may voluntarily increase the Exchange Rate.
If the Parent 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, the right to exchange a
Security into Common Stock may be changed into a right to exchange it into
securities, cash or other assets of the Parent or another person.
10. Exchange Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for exchange
before the close of business on 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 exchange
them into Common Stock of the Company and to make payment for such Securities to
the Trustee in trust for such Holders.
11. Tax Event
(a) From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event or (ii) the date the Company exercises such option,
whichever is later (the later of such dates, the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 1.50% per annum on a principal amount per Security (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date.
(b) From and after the Option Exercise Date, contingent interest
provided for in paragraph 5 hereof shall cease to accrue on this Security.
(c) Interest accrual on any Security under paragraph 11(a) above shall
be payable semiannually on August 13 and February 13 of each year (each an
"Interest Payment Date") to holders of record at the close of business on July
29 or January 29 (each a "Regular Record Date") immediately preceding such
Interest Payment Date. Such interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months and will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
Option Exercise Date. Interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the person in whose name that Security is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose. Each installment of interest on any
Security shall be paid in same-day funds by transfer to an account maintained by
the payee located inside the United States.
12. Defaulted Interest
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant
(A-1) R-11
Regular Record Date or accrual date, as the case may be, by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company as
provided for in Section 12.02(b) of the Indenture.
13. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer or exchange of any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities in respect of which a Purchase Notice or
Change in Control Purchase Notice has been given and not withdrawn (except, in
the case of a Security to be purchased in part, the portion of the Security not
to be purchased) or any Securities for a period of 15 days before the mailing of
a notice of redemption of Securities to be redeemed.
14. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
15. 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 laws. 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.
16. 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 at Maturity 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
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the Company's
obligations under this Security or to add to the Company's covenants for the
benefit of the Securityholders or to surrender any right or power conferred, or
to comply with any requirement of the SEC in connection with the qualification
of the Indenture under the Trust Indenture Act of 1939 and any amendment
thereof, or as necessary in connection with the
(A-1) R-12
registration of the Securities under the Securities Act or to make any change
that does not adversely affect the rights of any Holders.
17. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in the
payment of contingent interest when the same becomes due and payable or of
semiannual interest which becomes due and payable upon exercise by the Company
of its option provided for in paragraph 11(a) hereof which default in any such
case continues for 30 days; (ii) default in payment of the Principal Amount at
Maturity (or, if the Securities have been converted to semiannual coupon notes
following a Tax Event, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price or Change in Control
Purchase Price, as the case may be, in respect of the Securities when the same
becomes due and payable; (iii) failure by the Company to comply with other
agreements in the Indenture or the Securities, subject to notice and lapse of
time; (iv) (a) failure of the Company to make any payment by the end of any
applicable grace period after maturity of Debt in an amount in excess of
$10,000,000, or (b) the acceleration of Debt in an amount in excess of
$10,000,000 because of a default with respect to such Debt without such Debt
having been discharged or such acceleration having been cured, waived, rescinded
or annulled, subject to notice and lapse of time; provided, however, that if any
such failure or acceleration referred to in (a) or (b) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed not to have occurred; and (v) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding, may declare the Issue Price
plus the Original Issue Discount through the date of such declaration, and any
accrued and unpaid contingent interest, if any, through the date of such
declaration, on all the Securities to be due and payable immediately. Certain
events of bankruptcy or insolvency are Events of Default which will result in
the Issue Price plus the Original Issue Discount on the Securities, and any
accrued and unpaid interest contingent interest, if any, through the occurrence
of such event, becoming due and payable immediately upon the occurrence of such
Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (i) or (ii) above) if it determines
that withholding notice is in their interests.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
(A-1) R-13
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. Original Issue Discount Information Reporting Requirements.
In accordance with the United States Treasury Regulation Section
1.1275-3, a Holder may obtain the projected payment schedule by submitting a
written request for such information to the following representative of the
Company: Corporate Secretary, Xxxxx Xxxxx Management, The Xxxxx Xxxxx Building,
000 Xxxxx Xxxxxx, Xxxxxx XX 00000.
23. GOVERNING LAW.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
----------------------
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(A-1) R-14
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------- agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
EXCHANGE NOTICE
To exchange this Security into Common Stock of the Company, check the box: [ ]
To exchange only part of this Security, state the Principal Amount at Maturity
to be exchanged (which must be $1,000 or an integral multiple of $1,000):
$
--------------------------
If you want the stock certificate made out in another person's name, fill in the
form below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
--------------------------------------------------------------------------------
Date: Your Signature:
--------------------- -------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
(A-1) R-15
EXHIBIT A-2
[Form of Certificate Note]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS AUGUST 13,
2001, AND THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT
IS 6.76% PER ANNUM. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT
SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO XXXXX XXXXX
MANAGEMENT, 000 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX 00000: ATTENTION: XXXXXXX X.
XXXXX.
THIS SECURITY AND THE SHARES OF NON-VOTING COMMON STOCK DELIVERABLE
UPON EXCHANGE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY, THE SHARES OF NON-VOTING COMMON STOCK DELIVERABLE UPON
EXCHANGE OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH XXXXX XXXXX MANAGEMENT
(THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
(A-2) F-1
SECURITIES ACT, SUBJECT TO XXXXX XXXXX CORP.'S, THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
(A-2) F-2
XXXXX XXXXX MANAGEMENT
Liquid Yield Option(TM) Note due 2031
(Zero Coupon-Senior)
No. R- CUSIP: 27827W AA 1
Issue Date: August 13, 2001 Original Issue Discount: $361.30
Issue Price: $638.70 (for each $1,000 Principal
(for each $1,000 Principal Amount at Maturity)
Amount at Maturity)
XXXXX XXXXX MANAGEMENT, a Massachusetts business trust, promises to pay
to ___________ or registered assigns, the Principal Amount at Maturity of [____]
DOLLARS ($[____]) on August 13, 2031.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is exchangeable as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: August 13, 2001 XXXXX XXXXX MANAGEMENT
By:
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Chase Manhattan Bank,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By:
--------------------------------------
Authorized Officer
(A-2) F-3
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option(TM) Note due 2031
(Zero Coupon-Senior)
1. Interest.
This Security shall not bear interest, except as specified in this
paragraph or in paragraphs 5 and 11 hereof. If the Principal Amount at Maturity
hereof or any portion of such Principal Amount at Maturity is not paid when due
(whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the
date set for payment of the Redemption Price pursuant to paragraph 6 hereof,
upon the date set for payment of the Purchase Price or Change in Control
Purchase Price pursuant to paragraph 7 hereof or upon the Stated Maturity of
this Security) or if interest (including semiannual or contingent interest, if
any) due hereon or any portion of such interest is not paid when due in
accordance with paragraph 5 or 11 hereof, then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at the rate of 1.50%
per annum, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 1.50% per annum, on a semiannual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
from the Issue Date of this Security.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Change in
Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. The Company will pay any 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, Registrar and Bid Solicitation Agent.
Initially, The Chase Manhattan Bank, a New York banking corporation
(the "Trustee"), will act as Paying Agent, Exchange Agent, Registrar and Bid
Solicitation Agent. The Company may appoint and change any Paying Agent,
Exchange Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee except that the Company will maintain
at least one Paying Agent in the State of New York, The 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, Exchange Agent, Registrar or
(A-2) R-1
co-registrar. None of the Company, any of its Subsidiaries or any of their
Affiliates shall act as Bid Solicitation Agent.
4. Indenture.
The Company issued the Securities under an Indenture dated as of August
13, 2001 (the "Indenture"), between the Company and the Trustee. 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 for a statement of those terms.
The Securities are general unsecured and unsubordinated obligations of
the Company limited to $314,000,000 aggregate Principal Amount at Maturity
(subject to Section 2.07 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Contingent Interest.
Subject to the accrual and record date provisions specified in this
paragraph 5, the Company shall pay contingent interest to the Holders during any
six-month period (a "Contingent Interest Period") from August 14 to February 13
and from February 14 to August 13, commencing August 14, 2006, if the average
LYON Market Price for the Five-Day Period with respect to such Contingent
Interest Period equals 120% or more of the sum of the Issue Price of a Security
and Original Issue Discount accrued thereon to the day immediately preceding the
first day of the relevant Contingent Interest Period.
The amount of contingent interest payable per $1,000 Principal Amount
at Maturity hereof in respect of any Quarterly Period within a Contingent
Interest Period shall equal the greater of (x) Regular Cash Dividends paid by
the Parent per share of Common Stock during that Quarterly Period multiplied by
the number of shares of Common Stock into which $1,000 Principal Amount at
Maturity hereof is exchangeable pursuant to paragraph 9 hereof as of the accrual
date for such contingent interest or (y) $0.06 multiplied by 14.3657.
Contingent interest, if any, will accrue and be payable to Holders as
of the record date for the related Regular Cash Dividend or, if no Regular Cash
Dividend is paid by the Parent during a Quarterly Period, to Holders as of the
15th day (whether or not a Business Day) preceding the last day of the relevant
Contingent Interest Period. Such payments shall be paid on the payment date of
the related Regular Cash Dividend or, if no Regular Cash Dividend is paid by the
Parent during any Quarterly Period, on the last day of the relevant Contingent
Interest Period. Original Issue Discount will continue to accrue at 1.50% per
annum whether or not contingent interest is paid.
"Five-Day Period" means, with respect to any Contingent Interest
Period, the five Trading Days ending on the second Trading Day immediately
preceding the first day of such Contingent Interest Period; provided, however,
if the Parent shall have declared a Regular Cash Dividend on its Common Stock
that is payable during such Contingent Interest Period but for which the record
date for determining stockholders entitled thereto precedes the first day of
such
(A-2) R-2
Contingent Interest Period, then "Five-Day Period" shall mean, with respect to
such Contingent Interest Period, the five Trading Days ending on the second
Trading Day immediately preceding such record date.
"Regular Cash Dividends" means quarterly or other periodic cash
dividends on the Parent's Common Stock as declared by the Parent's Board of
Directors as part of its cash dividend payment practices and that are not
designated by them as extraordinary or special or other nonrecurring dividends.
"LYON Market Price" means, as of any date of determination, the average
of the secondary market bid quotations per $1,000 Principal Amount at Maturity
obtained by the Bid Solicitation Agent for $10 million Principal Amount at
Maturity of Securities at approximately 4:00 p.m., New York City time, on such
determination date from three recognized securities dealers in The City of New
York (none of which shall be an Affiliate of the Company) selected by the
Company; provided, however, if (a) at least three such bids are not obtained by
the Bid Solicitation Agent or (b) in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities as
of such determination date, then the LYON Market Price for such determination
date shall equal (i) the Exchange Rate in effect as of such determination date
multiplied by (ii) the average Sale Price of the Common Stock for the five
Trading Days ending on such determination date, appropriately adjusted to take
into account the occurrence, during the period commencing on the first of such
Trading Days during such five Trading Day period and ending on such
determination date, of any event described in Section 11.06, 11.07 or 11.08
(subject to the conditions set forth in Sections 11.09 and 11.10) of the
Indenture.
The term "Quarterly Period" shall mean, with respect to any Contingent
Interest Period, any quarterly period within such Contingent Interest Period
extending from August 14 to November 13, from November 14 to February 13, from
February 14 to May 13 or from May 14 to August 13.
Upon determination that Holders will be entitled to receive contingent
interest which may become payable during a Contingent Interest Period, on or
prior to the first day of such Contingent Interest Period, the Company shall
promptly notify the Trustee of such determination and shall issue a press
release and publish such information on its web site on the World Wide Web or
through such other public medium as the Company may use at that time. The
Company shall also notify the Trustee of the declaration of any Regular Cash
Dividends and the related record and payment dates.
6. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company in accordance with the Indenture at the Redemption Prices set
forth below, provided that the Securities are not redeemable prior to August 13,
2006.
(A-2) R-3
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect accrued Original Issue Discount calculated to each such
date. The Redemption Price of a Security redeemed between such dates shall
include an additional amount reflecting the additional Original Issue Discount
accrued since the preceding date in the table but not including the Redemption
Date.
(2) (3)
(1) Accrued Redemption
LYON Original Price
Issue Date Issue Discount (1)+(2)
Redemption Date ---------- --------------- ------------
August 13:
2006 $638.70 $49.55 $688.25
2007 $638.70 $59.91 $698.61
2008 $638.70 $70.43 $709.13
2009 $638.70 $81.11 $719.81
2010 $638.70 $91.95 $730.65
2011 $638.70 $102.95 $741.65
2012 $638.70 $114.11 $752.81
2013 $638.70 $125.45 $764.15
2014 $638.70 $136.95 $775.65
2015 $638.70 $148.63 $787.33
2016 $638.70 $160.49 $799.19
2017 $638.70 $172.52 $811.22
2018 $638.70 $184.73 $823.43
2019 $638.70 $197.13 $835.83
2020 $638.70 $209.72 $848.42
2021 $638.70 $222.49 $861.19
2022 $638.70 $235.46 $874.16
2023 $638.70 $248.62 $887.32
2024 $638.70 $261.98 $900.68
2025 $638.70 $275.54 $914.24
2026 $638.70 $289.30 $928.00
2027 $638.70 $303.28 $941.98
2028 $638.70 $317.46 $956.16
2029 $638.70 $331.85 $970.55
2030 $638.70 $346.47 $985.17
At Stated Maturity $638.70 $361.30 $1,000.00
If this Security has been converted to a semiannual coupon note
following the occurrence of a Tax Event, the Redemption Price will be equal to
the Restated Principal Amount plus accrued and unpaid interest from the date of
such conversion to but not including the Redemption Date.
(A-2) R-4
In addition to the Redemption Price payable with respect to all
Securities or portions thereof to be redeemed as of a Redemption Date, the
Holders of such Securities (or portions thereof) shall be entitled to receive
accrued and unpaid contingent interest, if any, with respect thereto, which
interest shall be paid in cash on the Redemption Date.
7. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Maturity, upon delivery of a Purchase
Notice containing the information set forth in the Indenture, at any time from
the opening of business on the date that is 20 Business Days prior to such
Purchase Date until the close of business on such Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in the
Indenture.
Purchase Date Purchase Price
------------- --------------
August 13: 2002 $648.32
2004 667.99
2006 688.25
2011 741.65
2016 799.19
2021 861.19
2026 928.00
The Purchase Price (equal to the Issue Price plus accrued Original
Issue Discount to the Purchase Date) may be paid, at the option of the Company,
in cash or by the delivery of shares of Common Stock of the Parent, or in any
combination thereof.
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion to the Purchase Date.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder no later than 35 Business Days after the occurrence of a
Change in Control, but in no event prior to the date on which such Change in
Control occurs, on or prior to August 13, 2006 for a Change in Control Purchase
Price equal to the Issue Price plus accrued Original Issue Discount to the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash.
If prior to a Change in Control Purchase Date this Security has been
converted to a semiannual coupon note following the occurrence of a Tax Event,
the Change in Control Purchase Price shall be equal to the Restated Principal
Amount plus accrued and unpaid interest from the date of conversion to the
Change in Control Purchase Date.
(A-2) R-5
A third party may make the offer and purchase of the Securities in lieu
of the Company in accordance with the Indenture.
In addition to the Purchase Price or Change in Control Purchase Price,
as the case may be, payable with respect to all Securities or portions thereof
to be purchased as of the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Holders of such Securities (or portions thereof) shall
be entitled to receive accrued and unpaid contingent interest, if any, with
respect thereto, which contingent interest shall be paid in cash promptly
following the later of the Purchase Date or the Change in Control Purchase Date,
as the case may be and the time of delivery of such Securities to the Paying
Agent pursuant to the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Purchase Price or Change in Control Purchase Price, as the case may
be, of, together with any accrued and unpaid contingent interest with respect
to, all Securities or portions thereof to be purchased as of the Purchase Date
or the Change in Control Purchase Date, as the case may be, is deposited with
the Paying Agent on the Business Day following the Purchase Date or the Change
in Control Purchase Date, as the case may be, Original Issue Discount and
interest (including semiannual and contingent interest), if any, shall cease to
accrue on such Securities (or portions thereof) immediately after such Purchase
Date or Change in Control Purchase Date, as the case may be, and the Holder
thereof shall have no other rights as such (other than the right to receive the
Purchase Price or Change in Control Purchase Price, as the case may be, and
accrued and unpaid contingent interest, if any, upon surrender of such
Security).
8. Notice of Redemption.
Notice of redemption will be mailed at least 15 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, and accrued and unpaid contingent interest, if any, with respect to,
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, on such
Redemption Date, Original Issue Discount and interest (including semiannual and
contingent interest), if any, shall cease to accrue on such Securities or
portions thereof. Securities in denominations larger than $1,000 of Principal
Amount at Maturity may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount at Maturity.
9. Exchange.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, Holders may
surrender this Security for exchange into shares of Common Stock on an Exchange
Date in any fiscal quarter of the Parent commencing after October 31, 2001, if,
as of the last day of the preceding fiscal quarter, the Sale Price of the Common
Stock for at least 20 Trading Days in a period of 30 consecutive Trading
(A-2) R-6
Days ending on the last Trading Day of such preceding fiscal quarter is greater
than the exchange trigger price. The "exchange trigger price" for any fiscal
quarter shall be a reference percentage, beginning at 120%, and declining 0.084%
per fiscal quarter thereafter, of the accreted exchange price per share of
Common Stock on the last Trading Day of such preceding fiscal quarter.
The "accreted exchange price" per share of Common Stock as of any day
equals the quotient of:
o the Issue Price and accrued Original Issue Discount to that
day, divided by
o the number of shares of Common Stock deliverable upon exchange
of $1,000 Principal Amount at Maturity of Securities on that
day.
For illustrative purposes only, the table below shows the exchange
trigger price per share of Common Stock in respect of each of the first 20
fiscal quarters. These prices reflect the accreted exchange price per share of
Common Stock (assuming that no events occurred requiring an adjustment to the
initial Exchange Rate of 14.3657 shares of Common Stock per $1,000 Principal
Amount at Maturity) multiplied by the applicable percentage for the respective
fiscal quarter. Thereafter, the accreted exchange price per share of Common
Stock increases each fiscal quarter by the accrued Original Issue Discount for
the quarter and the applicable percentage declines by 0.084% per quarter.
(A-2) R-7
(3)
(1) Exchange
Accreted (2) Trigger
Exchange Applicable Price
Quarter* Price Percentage (1)X(2)
----------- ----------- -----------
2002
First Quarter ................ $44.60 120.000% $53.53
Second Quarter................ $44.77 119.916% $53.69
Third Quarter................. $44.94 119.832% $53.85
Fourth Quarter................ $45.11 119.748% $54.01
2003
First Quarter ................ $45.28 119.664% $54.18
Second Quarter................ $45.45 119.580% $54.34
Third Quarter................. $45.62 119.496% $54.51
Fourth Quarter................ $45.79 119.412% $54.67
2004
First Quarter ................ $45.96 119.328% $54.84
Second Quarter................ $46.13 119.244% $55.07
Third Quarter................. $46.30 119.160% $55.17
Fourth Quarter................ $46.48 119.076% $55.34
2005
First Quarter ................ $46.65 118.992% $55.51
Second Quarter................ $46.82 118.908% $55.68
Third Quarter................. $47.00 118.824% $55.85
Fourth Quarter................ $47.18 118.740% $56.02
2006
First Quarter ................ $47.35 118.656% $56.19
Second Quarter................ $47.53 118.572% $56.36
Third Quarter................. $47.71 118.488% $56.53
Fourth Quarter................ $47.89 118.404% $56.70
Subject to the provisions of this paragraph 9 and notwithstanding the
fact any other condition to exchange has not been satisfied, if at any time
either Rating Agency has issued a rating on the Securities, Holders may exchange
the Securities into Common Stock on an Exchange Date during any period in which
the credit rating assigned to the Securities by a Rating Agency is three or more
rating subcategories below the credit rating initially assigned to the
Securities by such Rating Agency. "Rating Agency" means either or both of (1)
Xxxxx'x Investors Service, Inc. and its successors, and (2) Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies Inc., and its
successors.
(A-2) R-8
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, a Holder may
exchange into Common Stock a Security or portion of a Security which has been
called for redemption pursuant to paragraph 6 hereof, but such Securities may be
surrendered for exchange only until the close of business on the second Business
Day immediately preceding the Redemption Date.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, in the event
that the Parent declares a dividend or distribution described in Section 11.07
of the Indenture, or a dividend or a distribution described in Section 11.08 of
the Indenture where the fair market value of such dividend or distribution per
share of Common Stock, as determined pursuant to the Indenture, exceeds 15% of
the Sale Price of the Common Stock on the Business Day immediately preceding the
date of declaration for such dividend or distribution, the Company will be
required to give notice to the Holders of the Securities at least 20 days prior
to the Ex-Dividend Time for such dividend or distribution, and Securities may be
surrendered for exchange at any time thereafter until the close of business on
the Business Day prior to the Ex-Dividend Time or until the Parent announces
that such dividend or distribution will not take place.
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to exchange has not been satisfied, in the event
the Parent is a party to a consolidation, merger or binding share exchange
pursuant to which the Common Stock would be converted into cash, securities or
other property as set forth in Section 11.14 of the Indenture, the Securities
may be surrendered for exchange at any time from and after the date which is 15
days prior to the date the Parent announces as the anticipated effective time of
the transaction until 15 days after the actual effective date of such
transaction, and at the effective time of such transaction the right to exchange
a Security into Common Stock will be deemed to have changed into a right to
exchange it into the kind and amount of cash, securities or other property of
the Parent or another person which the Holder would have received if the Holder
had exchanged its Security immediately prior to the transaction.
A Security in respect of which a Holder has delivered a Purchase Notice
or Change in Control Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be exchanged only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Exchange Rate is 14.3657 shares of Common Stock per $1,000
Principal Amount at Maturity, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
In the event the Company exercises its option pursuant to Section 10.01
of the Indenture to have interest in lieu of Original Issue Discount accrue on
the Security following a Tax Event, the Holder will be entitled on exchange to
receive the same number of shares of Common Stock such Holder would have
received if the Company had not exercised such option.
Accrued and unpaid semiannual and contingent interest will not be paid
in cash on Securities that are exchanged but will be paid in the manner provided
in the following paragraph;
(A-2) R-9
provided, however that Securities surrendered for exchange during the period, in
the case of semiannual interest, from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date or, in the case of contingent interest, from the
close of business on any date on which contingent interest accrues to the
opening of business on the date on which such contingent interest is payable,
shall be entitled to receive such semiannual or contingent interest, as the case
may be, payable on such Securities on the corresponding Interest Payment Date or
the date on which such contingent interest is payable and (except Securities
with respect to which the Company has mailed a notice of redemption) Securities
surrendered for exchange during such periods must be accompanied by payment of
an amount equal to the semiannual or contingent interest with respect thereto
that the registered Holder is to receive.
A Holder may exchange a portion of a Security if the Principal Amount
at Maturity of such portion is $1,000 or an integral multiple of $1,000. No
payment or adjustment will be made for dividends on the Common Stock except as
provided in the Indenture. On exchange of a Security, the greater of that
portion of accrued Original Issue Discount (or interest if the Company has
exercised its option provided for in paragraph 11(a) hereof) or tax OID
attributable to the period from the Issue Date (or, if the Company has exercised
the option referred to in paragraph 11(a) hereof, the later of (x) the date of
such exercise and (y) the date on which interest was last paid) through the
Exchange Date and (except as provided above) accrued contingent interest with
respect to the exchanged Security shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through the delivery of the Common Stock (together with the cash payment, if
any, in lieu of fractional shares) and/or cash, if any, to the extent of the
value thereof in exchange for the Security being exchanged pursuant to the terms
hereof; and such cash, if any, and/or the fair market value of such shares of
Common Stock (together with any such cash payment in lieu of fractional shares)
shall be treated as exchanged, to the extent thereof, first in exchange for
Original Issue Discount (or interest, if the Company has exercised its option
provided for in paragraph 11(a) hereof) accrued through the Exchange Date and
accrued contingent interest, and the balance, if any, of such cash and/or the
fair market value of such Common Stock (and any such cash payment in lieu of
fractional shares) shall be treated as delivered in exchange for the Issue Price
of the Security being exchanged pursuant to the provisions hereof.
To exchange a Security, a Holder must (1) complete and manually sign
the exchange notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Exchange Agent, (2) surrender the
Security to the Exchange Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Exchange Agent, the Company or the Trustee
and (4) pay any transfer or similar tax, if required.
The Exchange Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days of the record date for such distribution at less than
the Sale Price of the Common Stock at the Time of Determination; and
distributions to such holders of assets (including shares of Capital Stock of a
Subsidiary) or debt securities of the Parent or certain rights to purchase
securities of the Parent (excluding
(A-2) R-10
certain cash dividends or distributions). However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.
The Company from time to time may voluntarily increase the Exchange Rate.
If the Parent 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, the right to exchange a
Security into Common Stock may be changed into a right to exchange it into
securities, cash or other assets of the Parent or another person.
10. Exchange Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for exchange
before the close of business on 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 exchange
them into Common Stock of the Company and to make payment for such Securities to
the Trustee in trust for such Holders.
11. Tax Event
(a) From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event or (ii) the date the Company exercises such option,
whichever is later (the later of such dates, the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 1.50% per annum on a principal amount per Security (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date.
(b) From and after the Option Exercise Date, contingent interest
provided for in paragraph 5 hereof shall cease to accrue on this Security.
(c) Interest accrual on any Security under paragraph 11(a) above shall
be payable semiannually on August 13 and February 13 of each year (each an
"Interest Payment Date") to holders of record at the close of business on July
29 or January 29 (each a "Regular Record Date") immediately preceding such
Interest Payment Date. Such interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months and will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
Option Exercise Date. Interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the person in whose name that Security is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose. Each installment of interest on any
Security shall be paid in same-day funds by transfer to an account maintained by
the payee located inside the United States.
12. Defaulted Interest
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant
(A-2) R-11
Regular Record Date or accrual date, as the case may be, by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company as
provided for in Section 12.02(b) of the Indenture.
13. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer or exchange of any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities in respect of which a Purchase Notice or
Change in Control Purchase Notice has been given and not withdrawn (except, in
the case of a Security to be purchased in part, the portion of the Security not
to be purchased) or any Securities for a period of 15 days before the mailing of
a notice of redemption of Securities to be redeemed.
14. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
15. 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 laws. 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.
16. 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 at Maturity 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
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the Company's
obligations under this Security or to add to the Company's covenants for the
benefit of the Securityholders or to surrender any right or power conferred, or
to comply with any requirement of the SEC in connection with the qualification
of the Indenture under the Trust Indenture Act of 1939 and any amendment
thereof, or as necessary in connection with the
(A-2) R-12
registration of the Securities under the Securities Act or to make any change
that does not adversely affect the rights of any Holders.
17. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in the
payment of contingent interest when the same becomes due and payable or of
semiannual interest which becomes due and payable upon exercise by the Company
of its option provided for in paragraph 11(a) hereof which default in any such
case continues for 30 days; (ii) default in payment of the Principal Amount at
Maturity (or, if the Securities have been converted to semiannual coupon notes
following a Tax Event, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price or Change in Control
Purchase Price, as the case may be, in respect of the Securities when the same
becomes due and payable; (iii) failure by the Company to comply with other
agreements in the Indenture or the Securities, subject to notice and lapse of
time; (iv) (a) failure of the Company to make any payment by the end of any
applicable grace period after maturity of Debt in an amount in excess of
$10,000,000, or (b) the acceleration of Debt in an amount in excess of
$10,000,000 because of a default with respect to such Debt without such Debt
having been discharged or such acceleration having been cured, waived, rescinded
or annulled, subject to notice and lapse of time; provided, however, that if any
such failure or acceleration referred to in (a) or (b) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed not to have occurred; and (v) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding, may declare the Issue Price
plus the Original Issue Discount through the date of such declaration, and any
accrued and unpaid contingent interest, if any, through the date of such
declaration, on all the Securities to be due and payable immediately. Certain
events of bankruptcy or insolvency are Events of Default which will result in
the Issue Price plus the Original Issue Discount on the Securities, and any
accrued and unpaid contingent interest, if any, through the occurrence of such
event, becoming due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (i) or (ii) above) if it determines
that withholding notice is in their interests.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
(A-2) R-13
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. Original Issue Discount Information Reporting Requirements.
In accordance with the United States Treasury Regulation Section
1.1275-3, a Holder may obtain the projected payment schedule by submitting a
written request for such information to the following representative of the
Company: Corporate Secretary, Xxxxx Xxxxx Management, The Xxxxx Xxxxx Building,
000 Xxxxx Xxxxxx, Xxxxxx XX 00000.
23. GOVERNING LAW.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS SECURITY.
----------------------
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(A-2) R-14
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
EXCHANGE NOTICE
To exchange this Security into Common Stock of the Company, check the box: [ ]
To exchange only part of this Security, state the Principal Amount at Maturity
to be exchanged (which must be $1,000 or an integral multiple of $1,000):
$
--------------------------
If you want the stock certificate made out in another person's name, fill in the
form below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
--------------------------------------------------------------------------------
Date: Your Signature:
--------------------- -------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
(A-2) R-15
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"Securities Act") (or any successor provision), the undersigned registered owner
of this Security hereby certifies with respect to $____________ Principal Amount
at Maturity of the above-captioned securities presented or surrendered on the
date hereof (the "Surrendered Securities") for registration of transfer, or for
exchange where the securities deliverable upon such exchange are to be
registered in a name other than that of the undersigned registered owner (each
such transaction being a "transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
[__] A transfer of the Surrendered Securities is made to the
Company or any subsidiaries; or
[__] The transfer of the Surrendered Securities complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
[__] The transfer of the Surrendered Securities is to an
institutional accredited investor, as described in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act; or
[__] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act, or
[__] The transfer of the Surrendered Securities is pursuant to an
offshore transaction in accordance with Rule 904 of Regulation
S under the Securities Act; or
[__] The transfer of the Surrendered Securities is pursuant to
another available exemption from the registration requirement
of the Securities Act.
and unless the box below is checked, the undersigned confirms that, to
the undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[__] The transferee is an Affiliate of the Company.
DATE:
----------------------- --------------------------------
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
(B-1) 1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx XX 00000
Attention: General Counsel
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Dear Sirs:
We are delivering this letter in connection with the proposed transfer
of $____________ Principal Amount at Maturity of the Liquid Yield Option Notes
due 2031 ("XXXXx") of Xxxxx Xxxxx Management (the "Company"), which are
exchangeable into shares of the Common Stock, $0.0078125 par value per share
(the "Common Stock"), of Xxxxx Xxxxx Corp., a Maryland corporation and the
ultimate parent of the Company (the "Parent").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii) the purchase of XXXXx by us is for our own account or for
the account of one or more other Institutional Accredited Investors or
as fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion or (B) we are a "bank," within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan association" or
other institution described in Section 3(a)(5)(A) of the Securities
Act that is acquiring XXXXx as fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(B-2) 1
(iii) we will acquire XXXXx having a minimum principal amount
at maturity of not less than $250,000 for our own account or for any
separate account for which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing XXXXx;
(v) on each day from the date on which we acquire the XXXXx
through and including the date on which we dispose of our interests in
such XXXXx or the XXXXx are exchanged for Common Stock of Xxxxx Xxxxx
Corp., either: (i) we are not (A) an "employee benefit plan" subject to
the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), (B) a "plan" subject
to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), (C) an entity whose underlying assets include the assets of
any such employee benefit plan or plan by reason of Department of Labor
Regulation Section 2510.3-101 or otherwise, or (D) a governmental plan
that is subject to any federal, state or local law which is
substantially similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, or (ii) our acquisition, holding and
subsequent disposition of XXXXx or interest therein will not result in
a prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code (or, in the case of a governmental plan, any substantially
similar federal, state or local law) for which an exemption is not
available, all the conditions of which are satisfied; and
(vi) we are not acquiring XXXXx with a view to distribution
thereof or with any present intention of offering or selling XXXXx or
the Common Stock deliverable upon exchange thereof, except as permitted
below; provided that the disposition of our property and property of
any accounts for which we are acting as fiduciary shall remain at all
times within our control.
We understand that the XXXXx were originally offered and sold in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act and that the XXXXx and the shares of Common
Stock (the "Securities") deliverable upon exchange thereof have not been
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any XXXXx, that if in the future we
decide to resell or otherwise transfer such Securities prior to the Resale
Restriction Termination Date (as defined below), such Securities may be resold
or otherwise transferred only (i) to Xxxxx Xxxxx Management or any subsidiary
thereof, or (ii) for as long as the XXXXx are eligible for resale pursuant to
Rule 144A, to a person it reasonably believes is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) that purchases for its
own account or for the account of a qualified institutional buyer to which
notice is given that the transfer is being made in reliance on Rule 144A, or
(iii) to an Institutional Accredited Investor that is acquiring the Security for
its own account, or for the account of such Institutional Accredited Investor
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, or (iv)
pursuant to another available exemption from registration under the Securities
Act (if applicable), or (v) pursuant to a registration statement which has been
declared effective under the Securities Act and, in each case, in
(B-2) 2
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction and in accordance with the legends set
forth on the Securities. We further agree to provide any person purchasing any
of the Securities other than pursuant to clause (v) above from us a notice
advising such purchaser that resales of such securities are restricted as stated
herein. We understand that the trustee or the transfer agent, as the case may
be, for the Securities will not be required to accept for registration of
transfer any Securities pursuant to (iii) or (iv) above except upon presentation
of evidence satisfactory to the Company that the foregoing restrictions on
transfer have been complied with. We further understand that any Securities will
be in the form of definitive physical certificates and that such certificates
will bear a legend reflecting the substance of this paragraph other than
certificates representing Securities transferred pursuant to clause (v) above.
As used herein, "Resale Restriction Termination Date" means (a) with respect to
any XXXXx, the date that is two years after the later of the date of the
original issuance of the XXXXx and the last date on which the Company or any
affiliate of the Company was the owner of such XXXXx and (b) with respect to
Common Stock delivered upon exchange of a LYON, the date that is two years after
the later of the date on which such shares were so delivered upon exchange and
the last date on which the Parent or any affiliate of the Parent was the owner
of such shares of Common Stock.
We acknowledge that the Company, others and you will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
-----------------------------------------
(Name of Purchaser)
By:
--------------------------------------
Name:
Title:
Address:
(B-2) 3
ANNEX C
Projected Payment Schedule*
Comparable Yield: 6.76% per annum
Quarterly Period Ending Projected Payment Per LYON
----------------------- --------------------------
9-Nov-09 $1.63
8-Feb-10 $1.63
10-May-10 $1.63
9-Aug-10 $1.63
8-Nov-10 $1.75
14-Feb-11 $1.75
9-May-11 $1.75
8-Aug-11 $1.75
14-Nov-11 $1.87
13-Feb-12 $1.87
14-May-12 $1.87
13-Aug-12 $1.87
12-Nov-12 $2.01
11-Feb-13 $2.01
13-May-13 $2.01
12-Aug-13 $2.01
11-Nov-13 $2.16
10-Feb-14 $2.16
12-May-14 $2.16
11-Aug-14 $2.16
10-Nov-14 $2.31
9-Feb-15 $2.31
11-May-15 $2.31
10-Aug-15 $2.31
9-Nov-15 $2.48
(Continued)
----------
* The comparable yield means the annual yield the Company would pay, as of the
Issue Date, on a fixed-rate nonconvertible debt security with no contingent
payments, but with terms and conditions otherwise comparable to those of the
XXXXx, and the schedule of projected payments has been determined on the basis
of an assumption of linear growth of the stock price and a constant dividend
yield and has not been determined for any purpose other than for the
determination of interest accruals and adjustments thereof in respect of the
Securities for United States federal income tax purposes. The comparable yield
and the schedule of projected payments do not constitute a projection or
representation regarding the amounts payable on Securities.
(C) 1
Quarterly Period Ending Projected Payment Per LYON
----------------------- --------------------------
8-Feb-16 $2.48
9-May-16 $2.48
8-Aug-16 $2.48
14-Nov-16 $2.67
13-Feb-17 $2.67
8-May-17 $2.67
14-Aug-17 $2.67
13-Nov-17 $2.86
12-Feb-18 $2.86
14-May-18 $2.86
13-Aug-18 $2.86
12-Nov-18 $3.07
11-Feb-19 $3.07
13-May-19 $3.07
12-Aug-19 $3.07
11-Nov-19 $3.29
10-Feb-20 $3.29
11-May-20 $3.29
10-Aug-20 $3.29
9-Nov-20 $3.53
8-Feb-21 $3.53
10-May-21 $3.53
9-Aug-21 $3.53
8-Nov-21 $3.79
14-Feb-22 $3.79
9-May-22 $3.79
8-Aug-22 $3.79
14-Nov-22 $4.07
14-Feb-23 $4.07
8-May-23 $4.07
14-Aug-23 $4.07
13-Nov-23 $4.37
12-Feb-24 $4.37
13-May-24 $4.37
12-Aug-24 $4.37
11-Nov-24 $4.69
10-Feb-25 $4.69
12-May-25 $4.69
11-Aug-25 $4.69
10-Nov-25 $5.03
9-Feb-26 $5.03
11-May-26 $5.03
10-Aug-26 $5.03
9-Nov-26 $5.40
(Continued)
(C) 2
Quarterly Period Ending Projected Payment Per LYON
----------------------- --------------------------
8-Feb-27 $5.40
10-May-27 $5.40
9-Aug-27 $5.40
8-Nov-27 $5.79
14-Feb-28 $5.79
8-May-28 $5.79
14-Aug-28 $5.79
13-Nov-28 $6.22
12-Feb-29 $6.22
14-May-29 $6.22
13-Aug-29 $6.22
12-Nov-29 $6.67
11-Feb-30 $6.67
13-May-30 $6.67
12-Aug-30 $6.67
11-Nov-30 $7.16
10-Feb-31 $7.16
12-May-31 $7.16
11-Aug-31 $7.16
13-Aug-31 $4,080.19
(C) 3
