EXHIBIT 4.1
EXECUTION COPY
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AVATAR HOLDINGS INC.,
AS ISSUER,
AND
JPMORGAN CHASE BANK,
AS TRUSTEE
4.50% Convertible Senior Notes due 2024
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INDENTURE
Dated as of March 30, 2004
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CROSS REFERENCE TABLE*
TIA Section Indenture Section
310(a)(1) .................................................... 7.10
(a)(2) .................................................... 7.10
(a)(3) .................................................... N.A.
(a)(4) .................................................... N.A.
(b) ....................................................... 7.08; 7.10
(c) ....................................................... N.A.
311(a) ....................................................... 7.11
(b) ....................................................... 7.11
(c) ....................................................... N.A.
312(a) ....................................................... 2.05
(b) ....................................................... 12.03
(c) ....................................................... 12.03
313(a) ....................................................... 7.06
(b)(1) .................................................... N.A.
(b)(2) .................................................... 7.06
(c) ....................................................... 12.02
(d) ....................................................... 7.06
314(a) ....................................................... 4.02; 4.03; 12.02
(b) ....................................................... N.A.
(c)(1) .................................................... 12.04
(c)(2) .................................................... 12.04
(c)(3) .................................................... N.A.
(d) ....................................................... N.A.
(e) ....................................................... 12.05
(f) ....................................................... N.A.
315(a) ....................................................... 7.01
(b) ....................................................... 7.05; 12.02
(c) ....................................................... 7.01
(d) ....................................................... 7.01
(e) ....................................................... 6.14
316(a)(last sentence) ........................................ 2.08
(a)(1)(A) ................................................. 6.08
(a)(1)(B) ................................................. 6.07
(a)(2) .................................................... N.A.
(b) ....................................................... 6.10
317(a)(1) .................................................... 6.03
(a)(2) .................................................... 6.04
(b) ....................................................... 2.04
318(a) ....................................................... 12.01
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.
TABLE OF CONTENTS*
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions .................................................................................. 1
Section 1.02. Other Definitions ............................................................................ 5
Section 1.03. Incorporation by Reference of Trust Indenture Act ............................................ 6
Section 1.04. Rules of Construction ........................................................................ 7
Section 1.05. Acts of Holders .............................................................................. 7
ARTICLE II
THE SECURITIES
Section 2.01. Form and Dating .............................................................................. 8
Section 2.02. Execution and Authentication ................................................................. 11
Section 2.03. Registrar, Paying Agent and Conversion Agent ................................................. 11
Section 2.04. Paying Agent to Hold Money in Trust .......................................................... 12
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 ................................................................................. 16
Section 2.11. Persons Deemed Owners ........................................................................ 16
Section 2.12. Global Securities ............................................................................ 16
Section 2.13. CUSIP, CINS and ISIN Numbers ................................................................. 21
ARTICLE III
REDEMPTION AND REPURCHASES
Section 3.01. Right to Redeem; Notices to Trustee .......................................................... 21
Section 3.02. Selection of Securities to Be Redeemed ....................................................... 21
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 .................................................................. 23
Section 3.07. Conversion Arrangement on Call for Redemption on Specified Dates ............................. 23
Section 3.08. Repurchase of Securities at Option of the Holder on Specified Dates .......................... 24
Section 3.09. Effect of Repurchase Notice .................................................................. 25
Section 3.10. Deposit of Repurchase Price .................................................................. 26
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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 3.11. Securities Repurchased in Part ............................................................... 26
Section 3.12. Repayment to the Company ..................................................................... 26
Section 3.13. Repurchase of Securities at Option of the Holder Upon A Designated
Event ........................................................................................ 26
Section 3.14. Notices; Method of Exercising Repurchase Right, Etc .......................................... 27
ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities ........................................................................ 30
Section 4.02. SEC and Other Reports ........................................................................ 30
Section 4.03. Compliance Certificate ....................................................................... 30
Section 4.04. Further Instruments and Acts ................................................................. 30
Section 4.05. Maintenance of Office or Agency .............................................................. 31
Section 4.06. Delivery of Certain Information .............................................................. 31
Section 4.07. Covenant to Comply With Securities Laws Upon Purchase of
Securities ................................................................................... 31
ARTICLE V
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 5.01. Consolidation, Merger or Sale of Assets by the Company Permitted ............................. 32
Section 5.02. Successor Corporation Substituted ............................................................ 32
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default ............................................................................ 32
Section 6.02. Acceleration; Rescission and Annulment ....................................................... 33
Section 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee .............................. 34
Section 6.04. Trustee May File Proofs of Claim ............................................................. 35
Section 6.05. Trustee May Enforce Claims Without Possession of Securities .................................. 35
Section 6.06. Delay or Omission Not Waiver ................................................................. 36
Section 6.07. Waiver of Past Defaults ...................................................................... 36
Section 6.08. Control by Majority .......................................................................... 36
Section 6.09. Limitation on Suits by Holders ............................................................... 36
Section 6.10. Rights of Holders to Receive Payment ......................................................... 37
Section 6.11. Application of Money Collected ............................................................... 37
Section 6.12. Restoration of Rights and Remedies ........................................................... 37
Section 6.13. Rights and Remedies Cumulative ............................................................... 37
Section 6.14. Undertaking for Costs ........................................................................ 38
Section 6.15. Waiver of Stay or Extension Laws ............................................................. 38
ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee ............................................................................ 38
Section 7.02. Rights of Trustee ............................................................................ 39
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Section 7.03. Individual Rights of Trustee ......................................................... 41
Section 7.04. Trustee's Disclaimer ................................................................. 41
Section 7.05. Notice of Defaults ................................................................... 41
Section 7.06. Reports by Trustee to Holders ........................................................ 41
Section 7.07. Compensation and Indemnity ........................................................... 41
Section 7.08. Replacement of Trustee ............................................................... 42
Section 7.09. Successor Trustee by Merger .......................................................... 43
Section 7.10. Eligibility; Disqualification ........................................................ 43
Section 7.11. Preferential Collection of Claims Against Company .................................... 43
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities ................................................. 43
Section 8.02. Repayment to the Company ............................................................. 44
ARTICLE IX
AMENDMENTS
Section 9.01. Without Consent of Holders ........................................................... 44
Section 9.02. With Consent of Holders .............................................................. 45
Section 9.03. Compliance with Trust Indenture Act .................................................. 45
Section 9.04. Revocation and Effect of Consents, Waivers and Actions ............................... 45
Section 9.05. Notation on or Exchange of Securities ................................................ 46
Section 9.06. Trustee to Sign Supplemental Indentures .............................................. 46
Section 9.07. Effect of Supplemental Indentures .................................................... 46
ARTICLE X
CONVERSION
Section 10.01. Conversion Privilege ................................................................. 46
Section 10.02. Conversion Procedure ................................................................. 47
Section 10.03. Fractional Shares .................................................................... 48
Section 10.04. Taxes on Conversion .................................................................. 48
Section 10.05. Company to Provide Stock ............................................................. 49
Section 10.06. Adjustment of Initial Conversion Rate ................................................ 49
Section 10.07. Notice of Adjustments ................................................................ 55
Section 10.08. Notice of Certain Transactions ....................................................... 55
Section 10.09. Reorganization of Company; Special Distributions ..................................... 56
Section 10.10. Company Determination Final .......................................................... 57
Section 10.11. Trustee's Adjustment Disclaimer ...................................................... 57
Section 10.12. Successive Adjustments ............................................................... 57
Section 10.13. Company's Right to Elect to Pay Cash or Common Stock ................................. 57
ARTICLE XI
PAYMENT OF INTEREST
Section 11.01. Interest Payments .................................................................... 58
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Section 11.02. Defaulted Interest ................................................................... 58
Section 11.03. Interest Rights Preserved ............................................................ 59
ARTICLE XII
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls ......................................................... 59
Section 12.02. Notices .............................................................................. 59
Section 12.03. Communication by Holders with Other Holders .......................................... 60
Section 12.04. Certificate and Opinion as to Conditions Precedent ................................... 60
Section 12.05. Statements Required in Certificate or Opinion ........................................ 61
Section 12.06. Separability Clause .................................................................. 61
Section 12.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar ....................... 61
Section 12.08. Legal Holidays ....................................................................... 61
Section 12.09. GOVERNING LAW ........................................................................ 61
Section 12.10. No Recourse Against Others ........................................................... 61
Section 12.11. Successors ........................................................................... 62
Section 12.12. Multiple Originals ................................................................... 62
EXHIBITS
Exhibit A-1 Form of Rule 144A/Regulation S Global Security
Exhibit A-2 Form of Certificated Security
Exhibit A-3 Form of Unrestricted Global Security
Exhibit B Transfer Certificate
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INDENTURE, dated as of March 30, 2004, between AVATAR HOLDINGS
INC., a Delaware corporation (the "Company"), and JPMORGAN CHASE BANK, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
4.50% Convertible Senior Notes due 2024 (the "Securities") having the terms,
tenor, amount and other provisions hereinafter set forth, and, to provide
therefor, the Company has duly authorized its execution and delivery of this
Indenture.
All things necessary to make the Securities, when the
Securities are duly executed by the Company, and the Securities are
authenticated and delivered hereunder and duly issued by the Company, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, in accordance with their and its terms, have been
done. In addition, all things necessary to duly authorize the issuance of the
Common Stock of the Company issuable upon the conversion of the Securities, and
to duly reserve for issuance the number of shares of Common Stock issuable upon
such conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"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 either the board of directors of
the Company or any duly authorized committee of such board.
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"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 by law, regulation or executive order 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 or other equity issued
by that corporation.
"Certificated Securities" means any of the Securities that are
in the form of the Securities attached hereto as Exhibit A-2.
"Closing Sale Price" of Capital Stock on any date means (a)
the closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date as reported
by the National Association of Securities Dealers Automated Quotation System, or
if not so reported, on the United States principal national securities exchange
on which the Capital Stock is traded, or (b) in the absence of such quotation,
such price as the Company shall determine on the basis of such quotations as the
Company considers appropriate.
"Common Stock" shall mean the shares of common stock, $1.00
par value, of the Company as it exists on the date of this Indenture or any
other shares of Capital Stock of the Company 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 one Officer.
"Corporate Trust Office" means the office of the Trustee at
which at any time this Indenture shall be principally administered, which office
at the date hereof is located at 4 Xxx Xxxx Xxxxx (00xx Xxxxx), Xxx Xxxx, Xxx
Xxxx 00000, Attention: Institutional Trust Services, or such other address as
the Trustee may designate from time to time by notice to 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
Company).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Event" means any event that is a Fundamental
Change or a Termination of Trading.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fundamental Change" means any transaction or event (whether
by means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification,
2
recapitalization or otherwise) in connection with which all or substantially all
of the Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive, consideration which is not all or
substantially all common stock that (i) is listed on, or immediately after the
transaction or event will be listed on, a United States national securities
exchange, or (ii) is approved, or immediately after the transaction or event
will be approved, for quotation on the Nasdaq Stock Market or any similar United
States system of automated dissemination of quotations of securities prices.
"Global Securities" means any of the Securities that are in
the form of the Securities attached hereto as Exhibit A-1 or A-3, and that are
deposited with the Depositary or its custodian and registered in the name of the
Depositary, representing Securities sold in reliance on Rule 144A and Regulation
S under the Securities Act or pursuant to a registration statement.
"Holder" or "Securityholder" means a person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Interest Payment Date" means April 1 and October 1 of each
year, commencing October 1, 2004.
"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.
"Notes" means any of the Company's 4.50% Convertible Senior
Notes due 2024, as amended or supplemented from time to time, issued under this
Indenture.
"Officer" means the Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officer's Certificate" means a certificate signed by an
Officer of the Company signing alone, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.04 and 12.05, if applicable, from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of, or counsel to, the Company or the Trustee.
"person" 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.
3
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Amount" of each Security means the principal amount
as set forth on the face of the Security.
"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 5 of the Securities.
"Regular Record Date" means each March 15 and September 15
(whether or not a Business Day).
"Regulation S" means Regulation S under the Securities Act (or
any successor regulation having substantially similar provisions), as it may be
amended from time to time.
"Responsible Officer" means, when used with respect to the
Trustee, any officer assigned to administer corporate trust matters or to whom
any corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who, in each case, 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 144" means Rule 144 under the Securities Act (or any
successor rule having substantially similar provisions), as it may be amended
from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule having substantially similar provisions), as it may be amended
from time to time.
"SEC" means the United States Securities and Exchange
Commission.
"Securities" means the Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means "significant subsidiary," as
such term is defined in Rule 1-02 of Regulation S-X under the Securities Act.
"Stated Maturity", when used with respect to any Security,
means the date specified in such Security as the final fixed date on which the
Principal Amount of such Security is due and payable.
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"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 the
Company, by one or more Subsidiaries of the Company or by the Company and one or
more Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a corporation
or a partnership) in which the Company, a Subsidiary of the Company or the
Company and one or more Subsidiaries of the Company, 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
other governing body of such person.
"Termination of Trading" will be deemed to have occurred if
the Common Stock (or other common stock into which the Securities are then
convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on the Nasdaq Stock Market.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939 as in effect on the date of this Indenture, provided, however, that in
the event the TIA is amended after such date, TIA means, to the extent required
by any such amendment, the TIA as so amended.
"Trading Day" means:
(1) if the applicable security is listed or admitted for
trading on The New York Stock Exchange or another national security
exchange, a day on which The New York Stock Exchange or such other
national security exchange is open for business;
(2) if the applicable security is quoted on the Nasdaq Stock
Market, a day on which trades may be made thereon; or
(3) if the applicable security is not so listed, admitted for
trading or quoted, a day on which the applicable security is traded
regular way in the over-the-counter market and for which a closing bid
and a closing asked price for such security are available.
"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.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" .............................................. 1.05(a)
"Agent Members" .................................... 2.12(f)
"Bankruptcy Law" ................................... 6.01
"Clearstream" ...................................... 2.01(a)
"Company Repurchase Notice" ........................ 3.09(d)
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"Company Repurchase Notice Date" .................................. 3.09(d)
"Conversion Agent" ................................................ 2.03
"Conversion Date" ................................................. 10.02(a)
"Conversion Price" ................................................ 10.01(a)
"Current Market Price" ............................................ 10.06(f)(i)
"Custodian" ....................................................... 6.01
"Defaulted Interest" .............................................. 11.02
"Depositary" ...................................................... 2.01(a)
"Designated Event Notice" ......................................... 3.14(a)
"Designated Event Repurchase Date" ................................ 3.14
"Designated Event Repurchase Exercise Notice"...................... 3.14(b)
"Designated Event Repurchase Price" ............................... 3.13
"Distribution" .................................................... 10.06(d)
"DTC" ............................................................. 2.01(a)
"Euroclear" ....................................................... 2.01(a)
"Event of Default" ................................................ 6.01
"Expiration Time" ................................................. 10.06(e)
"fair market value" ............................................... 10.06(f)(ii)
"Legal Holiday" ................................................... 11.08
"Legend" .......................................................... 2.06(f)
"Notice of Default" ............................................... 6.01
"Paying Agent" .................................................... 2.03
"Purchased Shares" ................................................ 10.06(e)(i)
"QIBs" ............................................................ 2.01(a)
"Record Date" ..................................................... 10.06(f)(iii)
"Register" ........................................................ 1.05(c)
"Registrar" ....................................................... 2.03
"Repurchase Date" ................................................. 3.08
"Repurchase Notice" ............................................... 3.08(a)
"Repurchase Price" ................................................ 3.08
"Rule 144A Information" ........................................... 4.06
"Special Record Date" ............................................. 11.02
"Spinoff Valuation Period" ........................................ 10.06(d)(1)
"Trigger Event" ................................................... 10.06(c)
"Unrestricted Global Securities" .................................. 2.01
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
6
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a defined term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted accounting
principles as in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
SECTION 1.05. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments (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 their 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, when 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.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution (or 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
acknowledged to such officer the execution (or electronic delivery) thereof.
When such execution is by a signer acting in a capacity other than such signer's
individual capacity, such
7
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 that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by a register
maintained by the Registrar (the "Register").
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of the Board of
Directors, 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 within six months after the record date.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibits X-0, X-0 xxx X-0, which are a part of this Indenture. Securities in the
form of Exhibit A-3 shall be called "Unrestricted Global Securities." 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) 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 or in offshore transactions in reliance on
Regulation S shall be issued initially in the form of Global Securities, which
shall be deposited with the Trustee at its Corporate Trust Office, as custodian
8
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") for the
accounts of participants in DTC (and, in the case of Securities transferred
subsequent to such initial issuance to Holders pursuant to Regulation S,
registered with the Depositary for the accounts of designated agents holding on
behalf of the Euroclear S.A./N.V., as operator of the Euroclear System
("Euroclear") or Clearstream Banking, societe anonyme ("Clearstream")), duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate Principal Amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. 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.
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 of outstanding Securities from time to time endorsed
thereon and that the aggregate Principal Amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, repurchases, redemptions and conversions.
Any adjustment of the aggregate Principal Amount of a Global
Security to reflect the amount of any increase or decrease in the Principal
Amount of outstanding Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.12 hereof and shall be made on the records of the Trustee and the
Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply
only to Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for such Depositary and (c)
shall bear legends substantially to the following effect:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED
9
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT; (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY,
EXCEPT (A) TO THE ISSUER OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A ADOPTED UNDER THE
SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS OTHER THAN U.S. PERSONS
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER
AVAILABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, FURNISH
TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE INDENTURE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF
WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION
WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY, EXCEPT AS PERMITTED BY THE SECURITIES ACT.
(d) 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.
10
SECTION 2.02. Execution and Authentication. The Securities
shall be executed on behalf of the Company by any Officer. The signature of the
Officer of the Company 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.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount of up to $120,000,000 upon one
or more Company Orders without any further action by the Company. The aggregate
Principal Amount 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 and any integral
multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement
with any Registrar or co-registrar, Paying Agent or Conversion 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 or Conversion Agent, the Trustee shall act as such. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Securities.
11
SECTION 2.04. Paying Agent to Hold Money in Trust. Except as
otherwise provided herein, not 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) 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 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 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 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 held by it to the Trustee and to account for any funds disbursed by
it. Upon doing so, the Paying Agent shall have no further liability for the
money.
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 a listing of
Securityholders, in writing at least seven Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. (a) Subject to Section
2.12 hereof, upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder's attorney duly
authorized in writing, at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03, the Company shall execute
and the Trustee 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. 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.
Subject to Section 2.12 hereof, at the option of the Holder,
Securities may be exchanged for other Securities of any authorized denomination
or denominations, of a like aggregate Principal Amount, upon surrender of the
Securities to be exchanged, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute and the Trustee shall authenticate and deliver, the Securities that the
Holder making the exchange is entitled to receive.
12
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 Repurchase Notice or
Designated Event Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to the Depositary, to nominees of the Depositary or to a successor
of the Depositary or such successor's nominee.
(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities upon
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, 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 or that such Securities are
not "restricted" within the meaning of Rule 144. 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, upon receipt of a Company
Order, shall authenticate and deliver a Security that does not bear the Legend,
which Security, if a Global Security, to be in the form of an Unrestricted
Global Security. If the Legend is removed from the face of a Security and the
Security is subsequently held by an Affiliate of the Company, the Company shall
use its reasonable best efforts to reinstate the Legend.
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
13
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.
SECTION 2.07. Replacement Securities. If any mutilated
Security is surrendered to the Trustee or if the Holder of a Security claims and
submits an affidavit or other evidence, satisfactory to the Trustee and the
Company, to the effect that the Security has been lost, destroyed or stolen, the
Company shall issue and the Trustee, upon receipt of the authentication order of
the Company in the form of an Officers' Certificate, shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any agent thereof from any loss which any of
them may suffer if a Security is replaced. The Company and the Trustee may
charge such Holder for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion,
but subject to any conversion rights, may, instead of issuing a new Security,
pay such Security, upon satisfaction of the conditions set forth in the
preceding paragraph.
Every new Security issued pursuant to this Section 2.07 in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.08. Outstanding Securities; Determinations of
Holders' Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee, except for those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate thereof holds the Security; provided, however, that in determining
whether the Holders of the requisite Principal Amount of Securities have given
or concurred in any request, demand, authorization, direction, notice, consent
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 determination shall be considered in any such determination (including
determinations pursuant to Articles VI and IX).
14
If a Security is replaced or paid pursuant to Section 2.07
(other than a mutilated Security surrendered for replacement), the replaced or
paid Security ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced or paid Security is held by a bona fide
purchaser. A mutilated Security ceases to be outstanding upon surrender of such
Security and replacement thereof pursuant to Section 2.07.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Repurchase Date or a
Designated Event Repurchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then on
or as of such Redemption Date, Repurchase Date, Designated Event Repurchase Date
or Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and 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.
If a Security is converted in accordance with Article X, then
from and after the time of conversion on the Conversion Date, such Security
shall cease to be outstanding and interest (if any) shall cease to accrue on
such Security.
SECTION 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and, upon Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and, upon Company Order, the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.10. Cancellation. All Securities surrendered for
payment, repurchase by the Company pursuant to Article III, conversion,
redemption or registration of transfer or exchange shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article X.
No Securities shall be authenticated in lieu of or in exchange for any
15
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.
SECTION 2.11. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of the Security or the payment of any Redemption
Price, Repurchase Price or Designated Event Repurchase Price in respect thereof
or (subject to Section 11.01) interest thereon, for the purpose of conversion
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.12. Global Securities. (a) Notwithstanding any other
provisions of this Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section
2.06 and Section 2.12(b)(i) below, (B) transfer of a beneficial interest in a
Global Security for a Certificated Security shall comply with Section 2.06 and
Section 2.12(b)(i) below, and (C) transfers of a Certificated Security shall
comply with Section 2.06 and Section 2.12(b)(ii) and transfer of a Certificated
Security for a beneficial interest in a Global Security shall comply with
Section 2.06 and Section 2.12(b)(iii) below.
(b) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that this Section
2.12(b) 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(b)
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(b).
(i) Restrictions on Transfer of a Beneficial Interest in a
Global Security for a Certificated Security. A beneficial interest in a
Global Security may not be exchanged for a Certificated Security except
upon satisfaction of the requirements set forth below and in Section
2.12(f). Upon receipt by the Trustee of a request for transfer of a
beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security, in the form reasonably
satisfactory to the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B;
(B) written instructions to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with respect
to such Global Security to reflect a decrease in the aggregate
Principal Amount of the Securities represented by the Global Security,
such instructions to contain information regarding the Depositary
account to be credited with such decrease; and
16
(C) if the Company so requests, an Opinion of Counsel or other
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate Principal
Amount of Securities represented by the Global Security to be decreased
by the aggregate Principal Amount 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 of the Certificated Security so
issued.
(ii) 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 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
(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, if being
transferred pursuant to clause (1), (2) or (3) below, are accompanied
by the additional information and documents specified in each clause,
as applicable:
(1) 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
(2) if such Certificated Securities are being transferred to
the Company, a certification to that effect; or
(3) 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, if applicable) and (ii) if
the Company so requests, an Opinion of Counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend.
17
(iii) 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 reasonably satisfactory to
the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B, that such
Certificated Security is being transferred in accordance with Rule
144A, Regulation S or Rule 144; 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 of the Securities represented by the Global
Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount of Securities represented by
the Global Security to be increased by the aggregate Principal Amount
of the Certificated Security to be exchanged, and shall credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Security equal to the
Principal Amount of the Certificated Security so cancelled. If no
Global Securities are then outstanding, the Company shall issue and the
Trustee, upon receipt of a Company Order, shall authenticate a new
Global Security in the appropriate Principal Amount.
(c) Subject to the succeeding paragraph, every Security shall
be subject to the restrictions on transfer provided in the Legend including the
requirement of 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, 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.
(d) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been transferred pursuant to an effective registration statement under the
Securities Act or transferred in compliance with Rule 144 or, if earlier, upon
the expiration of the holding period applicable to sales thereof under paragraph
(k) of Rule 144. 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, by an Opinion of Counsel having substantial experience in
18
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), be exchanged for a new Security, of like
tenor and aggregate Principal Amount, which shall not bear the restrictive
Legend, which Security, if a Global Security, to be in the form of an
Unrestricted Global Security. 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.
(e) 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.
(f) The provisions of clauses (1), (2), (3), (4) and (5) below
shall apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or
the Securities, a Global Security shall not be exchanged in whole or in
part for a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a Global
Security may be exchanged for Securities registered in the names of any
person designated by the Depositary in the event that (i) the
Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or such Depositary has
ceased to be a "clearing agency" registered under the Exchange Act, and
a successor Depositary is not appointed by the Company within 90 days;
(ii) the Company elects to discontinue use of the system of book-entry
transfer through DTC (or any successor depositary); or (iii) a Default
or an Event of Default has occurred and is continuing. Any Global
Security exchanged pursuant to clause (i) of this sub-section shall be
so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clause (ii) of this sub-section may be exchanged
in whole or from time to time in part as directed by the Depositary.
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 upon the request of an owner of a beneficial interest in a
Global Security to receive a Certificated Security in exchange for such
interest. 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
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
19
Global Security, the Principal Amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the order of
the Depositary or an authorized representative thereof. In the event
that Certificated Securities are not issued, promptly after the Trustee
has received a request from the Depositary to issue such Certificated
Securities, to any given beneficial holder owner of Securities upon
such holder's request pursuant to clause (iii) of Section 2.12(f)(1)
above, the Company expressly acknowledges, with respect to the right of
any Holder to pursue a remedy pursuant to Sections 6.09 and 6.10
hereof, the right of any beneficial holder of an interest in the
Securities to pursue such remedy with respect to the portion of the
Global Security that represents such beneficial holder's interest in
the Securities as if such Certificated Securities had been issued.
Nothing in the preceding sentence shall prejudice the rights and
protections of the Trustee, any Paying Agent (other than the Company or
any Affiliate of the Company), the Registrar or any Conversion Agent
(other than the Company or any Affiliate of the Company) under Sections
2.11 or 2.12(f)(5).
(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.
(5) Except as provided in Section 2.12(f)(2) above, 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.
The provisions of the "Operating Procedures of the Euroclear System" and "Terms
and Conditions Governing Use of Euroclear" and the "Management Regulations and
Instructions to Participants" of Clearstream shall be applicable to interests in
any Global Securities that are held by participants through Euroclear or
Clearstream.
SECTION 2.13. CUSIP, CINS and ISIN Numbers. The Company in
issuing the Securities may use "CUSIP," "CINS" and "ISIN" numbers (if then
generally in use), and, if
20
so, the Trustee shall use CUSIP, CINS and ISIN 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, CINS or ISIN numbers.
ARTICLE III
REDEMPTION AND REPURCHASES
SECTION 3.01. Right to Redeem; Notices to Trustee. The
Company, at its option, may redeem the Securities in accordance with the
provisions of this Article III and paragraphs 5 and 7 of the Securities. Prior
to April 5, 2011, the Company cannot redeem the Securities. Beginning on April
5, 2011, the Company may redeem the Securities for cash in whole at any time, or
in part from time to time. If the Company elects to redeem Securities pursuant
to paragraph 5 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the Principal Amount of Securities to be redeemed, the
Redemption Price and the amount of accrued and unpaid 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 45 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee), and shall
give notice to the Trustee of the election referred to in Section 3.03(3) by a
Company Order, at least two Business Days prior to the 30th day prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).
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. 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 any portions thereof that the Trustee selects
shall be in Principal Amounts of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
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SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and accrued and unpaid interest, if
any, payable on the Redemption Date;
(3) the Conversion Rate and whether the Company will elect to
pay Holders cash in lieu of delivery of Common Stock in satisfaction of
all or part of the Company's obligations in the event of conversions
following the notice of redemption;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at
any time before the close of business on the second Business Day
immediately preceding the Redemption Date, even if not otherwise
convertible at such time;
(6) that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 8 of the Securities;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and accrued and
unpaid interest, if any;
(8) if fewer than all the outstanding Securities are to be
redeemed, the certificate number and Principal Amounts of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of
such Redemption Price and any interest which is due and payable
interest (if any) will cease to accrue on and after the Redemption
Date;
(10) the CUSIP number, CINS number and ISIN number, if
applicable, of the Securities; and
(11) any other information the Company wants to present.
At the Company's request, the Trustee shall give the notice of
redemption to Holders in the Company's name and at the Company's expense,
provided that the Company makes such request at least ten 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 and
unpaid interest, if any, to but not including the date of redemption) stated in
the notice except for Securities which are converted in
22
accordance with the terms of this Indenture; provided, however, that
installments of interest on Securities due on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Date. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price (together with accrued and unpaid 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 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 converted. The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Securities pursuant to Article X. If such money
is then held by the Company in trust and is not required for such purpose it
shall be discharged from such trust.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. Conversion Arrangement on Call for Redemption on
Specified Dates. In connection with any redemption of Securities, the Company
may arrange for the purchase and conversion 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 interest with respect to, such
Securities. Notwithstanding anything to the contrary contained in this Article
III, the obligation of the Company to pay the Redemption Price 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 conversion 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 X) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the second
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 conversion 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 conversion 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
23
connection with any such arrangement for the purchase and conversion 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. Repurchase of Securities at Option of the Holder
on Specified Dates. Securities shall be repurchased by the Company in whole or
in part pursuant to the terms of the Securities at the option of the Holder on
April 1, 2011, April 1, 2014 and April 1, 2019 (each, a "Repurchase Date"), at a
repurchase price of 100% of the Principal Amount plus any accrued and unpaid
interest (the "Repurchase Price"), in each case, to, but excluding, such
Repurchase Date; provided, however, that installments of interest on Securities
due on or prior to the Repurchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Date. Repurchases of Securities under this Section 3.08
shall be made, at the option of the Holder thereof, upon:
(a) delivery to the Paying Agent by a Holder of a written
notice (a "Repurchase Notice") during the period beginning at any time from the
opening of business on the date that is 20 Business Days prior to the applicable
relevant Repurchase Date until the close of business on the third Business Day
prior to such Repurchase Date stating:
(A) if Certificated Securities have been issued, the
certificate numbers of the Securities, which the Holder will deliver to
be purchased, or the appropriate Depository information if the Security
is represented by a Global Security,
(B) the portion of the Principal Amount of the Securities
which the Holder will deliver to be purchased, which portion must be a
Principal Amount of $1,000 or an integral multiple thereof, and
(C) that such Security shall be purchased as of the Repurchase
Date pursuant to the terms and conditions specified in paragraph 6 of
the Securities and in this Indenture; and
(b) delivery or book-entry transfer of the Securities to the
Paying Agent at any time after delivery of the applicable Repurchase Notice
(together with all necessary endorsements) at the office of the Paying Agent,
such delivery being a condition to receipt by the Holder of the Repurchase Price
therefor; provided that such Repurchase 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 Repurchase Notice.
The Company shall repurchase from the Holder thereof, pursuant
to this Section 3.08, a portion of a Security, if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.
Any repurchase by the Company contemplated pursuant to the
provisions of this Section shall be consummated by the delivery of the
consideration to be received by the Holder
24
promptly following the later of (i) the Repurchase Date and (ii) the time of the
book-entry transfer or delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Repurchase Notice contemplated by this
Section 3.08 shall have the right to withdraw such Repurchase Notice at any time
prior to the close of business on the Business Day immediately preceding the
Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 3.09.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
Any reference herein, in any context, to the principal of any
Security as of any time, shall be deemed to include a reference to the
Repurchase Price payable in respect of such Security to the extent that such
Repurchase Price is, was or would be so payable at such time, and express
mention of the Repurchase Price in any provision hereof shall not be construed
as excluding the Repurchase Price in such provision when such express mention is
not made
SECTION 3.09. Effect of Repurchase Notice. Upon receipt by the
Paying Agent of the Repurchase Notice specified in Section 3.08, the Holder of
the Security in respect of which such Repurchase Notice was given shall (unless
such Repurchase Notice is validly withdrawn) thereafter be entitled to receive
solely the Repurchase Price with respect to such Security. Such Repurchase Price
shall be paid to such Holder, subject to receipt of funds and/or Securities by
the Paying Agent, promptly following the later of (x) the Repurchase Date with
respect to such Security (provided the Holder has satisfied the conditions in
Section 3.08) 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. Securities in
respect of which a Repurchase Notice has been given by the Holder thereof may
not be converted pursuant to Article X hereof on or after the date of the
delivery of such Repurchase Notice unless such Repurchase Notice has first been
validly withdrawn.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent at any time
prior to the close of business on the Business Day immediately preceding the
Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted, or the
appropriate Depositary information if the Security in respect of which
such notice of withdrawal is being submitted is represented by a Global
Security,
(2) the Principal Amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which
remains subject to the original Repurchase Notice and which has been or
will be delivered for purchase by the Company.
25
SECTION 3.10. Deposit of Repurchase Price. Prior to 10:00 a.m.
(New York City time) on the Business Day following the Repurchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary
or an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.04) an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate Repurchase Price of all the Securities or portions thereof that are to
be repurchased as of the Repurchase Date.
If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount of
such Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date at
the rate of 4.50% per annum.
SECTION 3.11. Securities Repurchased in Part. Upon
presentation of any Security repurchased only in part, the Company shall execute
and the Trustee shall authenticate and make available for delivery to the Holder
thereof, at the expense of the Company, a new Security or Securities, of any
authorized denomination, in aggregate Principal Amount equal to the
unrepurchased portion of the Securities presented.
SECTION 3.12. Repayment to the Company. Subject to Section
8.02, the Paying Agent shall return to the Company any cash that remains
unclaimed, together with interest, if any, thereon, held by it for the payment
of the Repurchase Price; provided that to the extent that the aggregate amount
of cash deposited by the Company pursuant to Section 3.10 exceeds the aggregate
Repurchase Price of the Securities or portions thereof which the Company is
obligated to purchase as of the Repurchase Date then, unless otherwise agreed in
writing with the Company, promptly after the Business Day following the
Repurchase Date, the Paying Agent shall return any such excess to the Company
together with interest, if any, thereon.
SECTION 3.13. Repurchase of Securities at Option of the Holder
Upon A Designated Event. In the event that a Designated Event shall occur, then
each Holder shall have the right, at the Holder's option, to require the Company
to repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder's Securities, or any portion of the principal amount thereof
that is equal to $1,000 or any integral multiple of $1,000 in excess thereof, on
the date (the "Designated Event Repurchase Date") that is 30 days after the date
of the Designated Event Notice (as defined in Section 3.14(a)) at a purchase
price equal to 100% of the principal amount of the Securities to be repurchased
(the "Designated Event Repurchase Price") plus interest, if any, accrued but
unpaid to, but excluding, the Designated Event Repurchase Date; provided,
however, that installments of interest on Securities due on or prior to the
Designated Event Repurchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Date. In the event that the Designated Event Repurchase
Date is a date between a Regular Record Date and the corresponding Interest
Payment Date, the Company shall pay interest on the Securities being repurchased
to the Holder who surrenders such Securities for repurchase. Any reference
herein, in any context, to the principal of any Security as of any time, shall
be deemed to include a reference to the Designated Event Repurchase Price
payable in respect of such Security to the extent that such Designated Event
Repurchase Price is, was or would be so payable at such time, and express
mention of the Designated Event Repurchase Price in any provision hereof shall
not
26
be construed as excluding the Designated Event Repurchase Price in such
provision when such express mention is not made.
SECTION 3.14. Notices; Method of Exercising Repurchase Right,
Etc. (a) Unless the Company shall have theretofore called for redemption all of
the Securities, on or before the 30th day after the occurrence of a Designated
Event, the Company or, at the request and expense of the Company, the Trustee,
shall give to all Holders of Securities, notice (the "Designated Event Notice")
of the occurrence of the Designated Event and of the repurchase right set forth
herein arising as a result thereof. If the Company gives such Designated Event
Notice to Holders, it shall also give such Designated Event Notice to the
Trustee. The Trustee shall not be charged with notice or knowledge of a
Designated Event until it shall have received a copy of such Designated Event
Notice.
Each Designated Event Notice shall describe such Designated
Event, shall state that as a result of the occurrence of such Designated Event
the Holder has the right to require the Company to repurchase the Holder's
Securities in whole or in part and shall state:
(i) the Designated Event Repurchase Date,
(ii) the date by which the repurchase right must be exercised
pursuant to Section 3.14(b),
(iii) the Designated Event Repurchase Price,
(iv) a description of the procedure which a Holder must follow
to exercise a repurchase right, and the place or places where such
Securities are to be surrendered for payment of the Designated Event
Repurchase Price and accrued and unpaid interest, if any, to, but
excluding, the Designated Event Repurchase Date,
(v) that on the Designated Event Repurchase Date the
Designated Event Repurchase Price, and accrued and unpaid interest, if
any, will become due and payable upon each such Security designated by
the Holder to be repurchased (unless such Holder exercises its right to
convert such Security pursuant to Article X of this Indenture), and
that interest thereon shall cease to accrue on and after said date with
respect to any Security designated by the Holder to be repurchased,
(vi) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such
Securities may be surrendered for conversion, and
(vii) the place or places that the notice described in Section
3.14(b) shall be delivered, and the form of such notice.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Securities.
27
If any of the foregoing provisions or other provisions of this
Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right following a Designated
Event, a Holder shall deliver to the Trustee or any Paying Agent on or before
the 30th day after the date of the Designated Event Notice (i) written notice of
the Holder's exercise of such right (a "Designated Event Repurchase Exercise
Notice"), which notice shall set forth the name of the Holder, the certificate
number of the Securities to be repurchased (and, if any Security is to
repurchased in part, the portion of the principal amount thereof to be
repurchased (which portion must be a Principal Amount of $1,000 or an integral
multiple thereof)), and the name of the Person in which the portion thereof to
remain outstanding after such repurchase is to be registered and a statement
that an election to exercise the repurchase right pursuant to this Section
3.14(b) is being made thereby with respect to the Securities so specified for
repurchase in such notice and (ii) delivery or book-entry transfer of the
Securities to the Paying Agent at any time after delivery of the applicable
Designated Event Notice (together with all necessary endorsements) at the office
of the Paying Agent, such delivery being a condition to receipt by the Holder of
the Designated Event Repurchase Price therefor; provided that such Designated
Event Repurchase Price shall be so paid pursuant to this Section 3.14 only if
the Security so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Designated Event Repurchase Exercise
Notice. Securities in respect of which a Designated Event Repurchase Exercise
Notice has been given by the Holder thereof may not be converted pursuant to
Article X hereof on or after the date of the delivery of such Designated Event
Repurchase Exercise Notice unless such Designated Event Repurchase Exercise
Notice has first been validly withdrawn.
A Designated Event Repurchase Exercise Notice may be withdrawn
by means of a written notice of withdrawal delivered to the office of the Paying
Agent at any time prior to the close of business on the Business Day immediately
preceding the Designated Event Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted, or the
appropriate Depositary information if the Security in respect of which
such notice of withdrawal is being submitted is represented by a Global
Security,
(2) the Principal Amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which
remains subject to the original Designated Event Repurchase Exercise
Notice and which has been or will be delivered for purchase by the
Company.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Designated Event Repurchase Exercise Notice or written
notice of withdrawal thereof.
(c) If the Holder of a Security exercises a repurchase right
in accordance with this Section, the Company shall, prior to 10:00 a.m. (New
York City time) on the Business Day following the Designated Event Repurchase
Date, deposit with the Paying Agent (or, if the
28
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) the
Designated Event Repurchase Price in cash (in immediately available funds if
deposited on such Business Day) for payment to such Holder together with accrued
and unpaid interest, if any, to but excluding the Designated Event Repurchase
Date payable with respect to the Securities as to which such Holder has
exercised the repurchase right; provided, however, that installments of interest
due on or prior to the Designated Event Repurchase Date shall be payable in cash
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Date,
in each case according to the terms and provisions of Article XI of this
Indenture.
(d) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Designated Event Repurchase Date, the
principal amount of such Security (or portion thereof, as the case may be)
shall, until paid, bear interest to the extent permitted by applicable law from
the Designated Event Repurchase Date at the rate of 4.50% per annum.
(e) With respect to any Security which is to be repurchased
only in part, the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Security or
Securities, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
(f) Any purchase by the Company contemplated pursuant to the
provisions of this Section shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of (i)
the Designated Event Repurchase Date and (ii) the time of the book-entry
transfer or delivery of the Security.
(g) Subject to Section 8.02, the Paying Agent shall return to
the Company any cash that remains unclaimed, together with interest, if any,
thereon, held by it for the payment of the Designated Event Repurchase Price;
provided that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.14(c) exceeds the aggregate Designated Event
Repurchase Price of the Securities or portions thereof which the Company is
obligated to purchase as of the Designated Event Repurchase Date then, unless
otherwise agreed in writing with the Company, promptly after the Business Day
following the Designated Event Repurchase Date, the Paying Agent shall return
any such excess to the Company together with interest, if any, thereon.
ARTICLE IV
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 on the due date, by the Company.
The Principal Amount, Redemption Price, Repurchase Price, Designated Event
Repurchase Price, and interest, if any, shall be considered paid on the
applicable date due
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if on such date (or, in the case of a Repurchase Price or Designated Event
Repurchase Price, on the Business Day following the applicable Repurchase Date
or Designated Event Repurchase 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
interest.
SECTION 4.02. SEC and Other Reports. The Company shall deliver
to the Trustee, within 30 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual and
quarterly reports 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. The Company also shall comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of 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 Officer's Certificates).
SECTION 4.03. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on December 31, 2004) an
Officer's Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 4.04. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency of the Trustee, Registrar, Paying Agent and Conversion Agent where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of JPMorgan Chase
Bank, 4 New York Plaza (15th Floor), New York, New York 10004 (Attention:
Institutional Trust Services), 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
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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
12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06. Delivery of Certain Information. At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder or any beneficial holder of Securities or shares of
Common Stock which are restricted securities issued upon conversion 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 issued upon conversion 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 security. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.07. 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 3.13 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 to the
extent applicable (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 3.13 to be exercised in the time and in the manner specified in
Sections 3.08 and 3.13.
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ARTICLE V
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
SECTION 5.01. Consolidation, Merger or Sale of Assets by the
Company Permitted. The Company may not merge or consolidate with or into any
other corporation or sell, convey, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets to any Person, unless (i)(A)
in the case of a merger or consolidation, the Company is the surviving
corporation or (B) in the case of a merger or consolidation where the Company is
not the surviving corporation and in the case of any such sale, conveyance,
transfer, lease or other disposition, the resulting successor or acquiring
Person is a corporation organized and existing under the laws of the United
States, any State thereof or the District of Columbia and such corporation
expressly assumes by supplemental indenture in a form reasonably satisfactory to
the Trustee all the obligations of the Company under the Securities and under
this Indenture, (ii) immediately thereafter, giving effect to such merger or
consolidation, or such sale, conveyance, transfer, lease or other disposition,
no Default or Event of Default shall have occurred and be continuing and (iii)
the Company has delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel each stating that such merger or consolidation, or such sale,
conveyance, transfer, lease or other disposition, complies with this Article V
and that all conditions precedent relating to such transaction have been
complied with as herein provided.
SECTION 5.02. Successor Corporation Substituted. Upon any
merger or consolidation of the Company with or into any other corporation or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all of the assets of the Company to any other Person, the successor corporation
formed by such consolidation or into which the Company is merged or the Person
to which such sale, conveyance, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person has been named as the Company herein, and thereafter, except in the case
of a lease to another Person, the Company shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs
with respect to the Securities if (regardless of the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of any interest on any
Security when the same becomes due and payable and such default
continues for a period of 30 days;
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(2) the Company defaults in the payment of the Principal
Amount, Redemption Price, Repurchase Price or Designated Event
Repurchase Price on any Security when the same becomes due and payable;
(3) the Company defaults in the performance of, or breaches,
any covenant or warranty of the Company in this Indenture with respect
to any Security (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and such default or breach continues for a period of 60
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate Principal Amount of the Securities
then outstanding, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
(4) the Company or any Subsidiary of the Company defaults in
the payment of any principal, interest or premium in an aggregate
amount of $20,000,000 or more, with respect to any indebtedness of the
Company or any indebtedness of any of the Subsidiaries of the Company,
or any such indebtedness in an aggregate amount of $20,000,000 or more
is accelerated, which default is not cured or waived, or such
acceleration rescinded or annulled, within 30 days after there has been
received, by registered or certified mail, by the Company or such
Subsidiary, as the case may be, from the Trustee, or by the Company or
such Subsidiary, as the case may be, and the Trustee from the Holders
of at least 25% in aggregate Principal Amount of the Securities then
outstanding, a Notice of Default;
(5) any final judgment or judgments for the payment of money
in excess of $20,000,000 is rendered against the Company or any of its
Subsidiaries and is not discharged for any period of 30 consecutive
days during which a stay of enforcement is not in effect;
(6) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law (A) commences a
voluntary case, (B) consents to the entry of an order for relief
against it in an involuntary case, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its property, or (D)
makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company or any of its Significant Subsidiaries in any involuntary case,
(B) appoints a Custodian of the Company or any of its Significant
Subsidiaries or for all or substantially all of its property, or (C)
orders the liquidation of the Company or any of its Significant
Subsidiaries and the order or decree remains unstayed and in effect for
90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
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SECTION 6.02. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate Principal Amount of all
Securities then outstanding, by written notice to the Company (and, if given by
the Holders, to the Trustee), may declare the principal of all the Securities to
be due and payable and upon any such declaration such principal and any accrued
and unpaid interest thereon to the date of such declaration shall be immediately
due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article VI provided, the Holders
of a majority in aggregate Principal Amount of the Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if all existing Defaults and Events of Default with respect to the
Securities, other than the non-payment of the principal of and interest, if any,
on the Securities that has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.07 and if all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel have
been paid. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that, if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the Principal Amount,
Redemption Price, Repurchase Price or Designated Event Repurchase Price
on any Security when the same becomes due and payable,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, premium, if any, and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium, if any, and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities wherever situated.
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If an Event of Default with respect to the Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of the Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings, or any voluntary or involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, 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
in respect of the Securities shall then be due and payable as therein expressed
or by declaration of acceleration 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,
(i) to file and prove a claim for the whole amount of
principal and interest, if any, owing and unpaid in respect of the
Securities 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) and
of the Holders of such Securities allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
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 such Holders, to pay to
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 6.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
35
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default. Every
right and remedy given by this Indenture or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.07. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate Principal Amount of the Securities, by notice to
the Trustee, may waive on behalf of the Holders of the Securities a past Default
or Event of Default and its consequences except (i) a Default or Event of
Default in the payment of the Principal Amount, Redemption Price, Repurchase
Price or Designated Event Repurchase Price, premium, if any, or interest, if
any, on any Security, unless the same shall have been paid in full or (ii) in
respect of a covenant or provision hereof which pursuant to Section 9.02 cannot
be amended or modified without the consent of all affected Holders. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.08. Control by Majority. The Holders of not less
than a majority in aggregate Principal Amount of the Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, (ii) subject to Section 7.01, the Trustee may refuse to follow any
direction that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability and (iii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.09. Limitation on Suits by Holders. No Holder of the
Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities;
(2) the Holders of at least 25% in aggregate Principal Amount
of the Securities have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, cost, liability
or expense to be, or which may be, incurred by the Trustee in pursuing
the remedy;
36
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60-day period, the Holders of a majority in
aggregate Principal Amount of the Securities have not given to the
Trustee a direction inconsistent with such written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
For the protection and enforcement of the provisions of this Section 6.09, each
and every Holder of the Securities and the Trustee shall be entitled to such
relief as can be given at law or in equity.
SECTION 6.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of the Securities to receive payment of the Principal Amount, Redemption Price,
Repurchase Price or Designated Event Repurchase Price on any Security when the
same becomes due and payable, premium, if any, and, subject to Section 11.01,
interest, if any, on the Securities, on or after due dates therefor (or, in case
of redemption or repurchase, on the relevant redemption or repurchase dates)
shall not be impaired or affected without the consent of such Holder.
SECTION 6.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article VI, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or interest, if any, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Securities in respect of which or for
the benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal of, premium, if any, and
interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
Third: the balance, if any, to the Company.
SECTION 6.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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SECTION 6.13. Rights and Remedies Cumulative. Except as
otherwise provided in Section 2.07 with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, no right or remedy herein
conferred upon or reserved to the Trustee or the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. 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, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or by the Trustee.
SECTION 6.15. Waiver of Stay or Extension 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 wherever enacted, now or at
any time hereafter in force, 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 VII
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 no implied
covenants or obligations shall be read into this Indenture against the
Trustee; 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 which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine
38
the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this 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;
(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 6.08; and
(4) 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.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) 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, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, subject also to its
duties and responsibilities under the TIA:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
39
(b) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officer's Certificate;
(c) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and
any advice of counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
resolution of the Board of Directors certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted and to be in full force and
effect on the date of such certification;
(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 a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities
and this Indenture;
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(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including 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
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person authorized to
sign an Officer's Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the Securities Act or in
this 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 a Responsible Officer of the Trustee, the Trustee shall give to
each Securityholder notice of the Default within 90 days after such Responsible
Officer obtains knowledge of such Default unless such Default shall have been
cured or waived before the giving of such notice, provided, however, that such
notice shall not be given prior to 60 days after the occurrence of any default
of the character specified in Section 6.01(3). 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 second
sentence of this Section 7.05 shall be in lieu of the proviso to Section 315(b)
of the TIA and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA. The Trustee shall not be deemed to have knowledge of a
Default 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 mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA Section 313(a), if required by such
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each securities exchange, if
any, on which the Securities are listed. The Company agrees to promptly notify
the Trustee whenever the Securities become listed on any securities exchange and
of any delisting thereof.
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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 reasonable attorney's fees and expenses
and taxes (other than taxes based upon, measured by or determined by the income
of the Trustee)) incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this trust,
including the 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 exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee except that held in trust to pay the
Redemption Price, Repurchase Price, Designated Event Redemption Price, 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. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(6) or (7), the expenses
including the reasonable charges and expenses of its counsel, are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
by so notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1), 310(a)(5) and
310(b). The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities. When (i)
the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced or paid pursuant to Section 2.07) for cancellation or (ii)
all outstanding Securities have become due and payable and the Company
irrevocably deposits with the Trustee, the Paying Agent (if the Paying Agent is
43
not the Company or any of its Affiliates) or the Conversion Agent cash or, if
expressly permitted by the terms of the Securities or this Indenture, Common
Stock sufficient to pay all amounts due and owing on all outstanding Securities
(other than Securities replaced or paid pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officer's Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.02. Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company, upon Company 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 IX
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:
(1) to evidence the succession of another entity to the
Company and the assumption of the Company's covenants by a successor;
(2) to add to the Company's covenants for the benefit of the
Securityholders;
(3) to surrender any right or power conferred upon the
Company;
(4) to add any additional Events of Default for the
Securities;
(5) to add or change any provisions to such extent as
necessary to permit or facilitate the issuance of the Securities in
bearer or in global form;
(6) to provide security for the Securities;
(7) to evidence and provide for the acceptance of appointment
of a separate or successor trustee;
(8) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of Holders of any Security in any material respect; or
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(9) to cure any ambiguity, defect or inconsistency or to make
any other changes that do not adversely affect the interests of the
Holders of Securities issued under this Indenture in any material
respect.
If the Trust Indenture Act is amended after the date of this
Indenture so as to require changes to this Indenture or so as to permit changes
to, or the elimination of, provisions which, at the date of this Indenture or at
any time thereafter, were required by the Trust Indenture Act to be contained in
this Indenture, this Indenture will be deemed to have been amended so as to
conform to such amendment or to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter into one
or more supplemental indentures to effect or evidence such amendment.
SECTION 9.02. With Consent of Holders. With the written
consent of the Holders of at least a majority in aggregate Principal Amount 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 Stated Maturity or an Interest Payment Date of
the Securities (other than pursuant to the terms thereof);
(2) reduce the Principal Amount, Redemption Price, Repurchase
Price, Designated Event Repurchase Price, interest or premium payable
or change the currency in which the Securities are payable;
(3) impair the right to bring suit to enforce any payment;
(4) make any change that adversely affects the rights of any
Holder to convert any Security;
(5) make any change that adversely affects the right of a
Holder to require the Company to repurchase the Securities;
(6) reduce the percentage in Principal Amount of Securities
whose Holders must consent to a modification or amendment of this
Indenture or a waiver of certain Defaults;
(7) change the Company's obligation to maintain an office or
agency in the places and for the purposes specified in this Indenture;
or
(8) modify any of the provisions of this Section 9.02.
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,
but failure to give such notice shall not impair the validity of such amendment.
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SECTION 9.03. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article IX shall comply with
the TIA.
SECTION 9.04. Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, consent, 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 amendment, consent, waiver or other action is
not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date as of which the
amendment, consent, waiver or action is made effective. After an amendment,
consent, 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 IX 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 Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06. Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article IX 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 12.04, an Officer's Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
SECTION 9.07. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article IX, 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 X
CONVERSION
SECTION 10.01. Conversion Privilege. (a) A Holder of a
Security may convert such Security into shares of Common Stock at any time
during the periods and subject to the conditions stated in paragraph 8 of the
Securities, subject to the provisions of this Article X. The number of shares of
Common Stock to be delivered upon conversion of a Security per $1,000 of
Principal Amount thereof shall be equal to 19.0006 (such amount, as adjusted
pursuant
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to this Article X, the "Conversion Rate"). The Conversion Rate shall be adjusted
as set forth in this Article X.
(b) A Holder may convert a portion of the Principal Amount of
a Security if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of a Security.
(c) The Company shall determine whether the Securities shall
be convertible as a result of the occurrence of an event specified in paragraph
8 of the Security and, if the Securities shall be convertible, the Company shall
promptly deliver to the Trustee written notice thereof (including notice of the
time period during which the Securities are convertible). Until receipt of such
notice, the Trustee shall be entitled to conclusively assume that the Securities
are not convertible. Whenever the Securities shall become convertible pursuant
to the foregoing condition, the Company or, at the Company's request, the
Trustee in the name and at the expense of the Company, shall notify the Holders
of the event triggering such convertibility in the manner provided under this
Indenture, and the Company shall also publicly announce such information and
publish it on the Company's website. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice.
SECTION 10.02. Conversion Procedure. (a) To convert a
Security, all of the requirements in paragraph 8 of the Securities must be
satisfied. The date on which all those requirements are satisfied is the
conversion date (the "Conversion Date"). Following the Conversion Date, the
Company shall deliver to the Holder through the Conversion Agent, subject to and
in accordance with Section 10.13, a certificate for the number of full shares of
Common Stock issuable upon the conversion (or, at the option of the Company as
set forth in Section 10.13, cash in lieu thereof) and cash in lieu of any
fractional share determined pursuant to Section 10.03. The Company shall
determine such full number of shares and the amounts of the required cash with
respect to any fractional share, and shall set forth such information in an
Officer's Certificate delivered to the Conversion Agent. The Conversion Agent
shall have no duties under this paragraph unless and until it has received such
certificate.
(b) The Person in whose name the stock certificate is
registered shall be treated as a stockholder of record on and after the
Conversion 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 conversion 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
conversion shall be at the Conversion Rate in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed. Upon conversion of a Security, such
Person shall no longer be a Holder of such Security.
(c) Holders may surrender a Security for conversion by means
of book-entry delivery in accordance with the regulations of the applicable
book-entry facility.
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(d) 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 X. On conversion of a Security, accrued but unpaid interest attributable
to the period from the most recent Interest Payment Date through the Conversion
Date, with respect to the converted 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), or, at the option of the Company
as set forth in Section 10.13, cash in lieu thereof, in exchange for the
Security being converted pursuant to the provisions hereof; and the fair market
value of such shares of Common Stock (together with any such cash payment in
lieu of fractional shares), or, at the option of the Company as set forth in
Section 10.13, cash in lieu thereof, shall be treated as issued, to the extent
thereof, first in exchange for accrued and unpaid interest through the
Conversion Date, and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the provisions
hereof. Notwithstanding the foregoing, accrued and unpaid interest will be
payable upon conversion of Securities made concurrently with or after
acceleration of Securities following an Event of Default.
(e) If the Holder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon conversion shall be
based on the aggregate Principal Amount of the Securities converted.
(f) Subject to the satisfaction of the requirements for
conversion set forth in paragraph 8 of the Security and subject to the
provisions of Section 3.09 and Section 3.14(b) relating to the withdrawal of a
Repurchase Notice or Designated Event Repurchase Exercise Notice, as the case
may be, (i) a Security surrendered for conversion pursuant to the provisions
under the caption "Conversion Based on Common Stock Price" set forth in
paragraph 8 of the Security may be surrendered for conversion only during the
calendar quarter specified therein, (ii) a Security being called for redemption
may be surrendered for conversion at any time prior to the close of business on
the second Business Day immediately preceding the Redemption Date, even if it is
not otherwise convertible at such time, (iii) a Security surrendered for
conversion based on the provisions under the caption "Conversion Based on the
Trading Price of Securities" set forth in paragraph 8 of the Security may be
surrendered for conversion only on the dates specified therein, (iv) a Security
surrendered for conversion based on the provisions under the caption "Conversion
Upon Certain Distributions" set forth in paragraph 8 of the Security may be
surrendered for conversion only on the dates specified therein, and (v) a
Security surrendered for conversion based on the provision under the caption
"Conversion Upon Occurrence of Certain Corporate Transactions" set forth in
paragraph 8 of the Security may be surrendered for conversion at any time from
and after the date that is 15 days prior to the date announced by the Company as
the anticipated effective date of such transaction until 15 days after the
actual date of such transaction.
(g) Upon surrender of a Security that is converted in part,
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security in an authorized denomination equal in Principal Amount
to the unconverted portion of the Security surrendered.
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SECTION 10.03. Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion 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 per share Closing Sale Price of
the Common Stock, on the last Trading Day prior to the Conversion Date, by the
fractional amount and rounding the product to the nearest whole cent.
SECTION 10.04. Taxes on Conversion. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder's name and any
income tax which is imposed on the Holder as a result of the conversion. The
Conversion Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder's name until the Conversion
Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder's name. Nothing herein
shall preclude the Company from any tax withholding or directing the withholding
of any tax required by law or regulations.
SECTION 10.05. Company to Provide Stock. (a) The Company
shall, prior to issuance of any Securities under this Article X, and from time
to time as may be necessary, reserve out of its authorized Common Stock that is
not outstanding a sufficient number of shares of Common Stock to permit the
conversion in full of the Securities.
(b) All shares of Common Stock delivered upon conversion of
the Securities shall be newly issued shares or treasury shares, shall be duly
and validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim created by the Company.
SECTION 10.06. Adjustment of Initial Conversion Rate. The
Conversion Rate shall be subject to adjustments, calculated by the Company, from
time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Rate in effect at the opening of business on the
date following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Rate by a fraction:
(i) the numerator of which shall be the sum of (x) the number
of shares of Common Stock outstanding at the close of business on the
Record Date (as defined in Section 10.06(f)(iii)) fixed for such
determination and (y) the total number of shares constituting such
dividend or other distribution, and
(ii) the denominator of which shall be the number of shares
referenced as (x) in clause (i) immediately above.
Such increase shall become effective immediately after the
opening of business on the day following the Record Date for such dividend or
other distribution. If any dividend or
49
distribution of the type described in this Section 10.06(a) is declared but not
so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate which would then be in effect if such dividend or distribution had not been
declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination
becomes effective.
(c) In case the Company shall issue rights or warrants (other
than any rights or warrants referred to in Section 10.06(d)) to all holders of
its outstanding shares of Common Stock entitling them to subscribe for or
purchase shares of Common Stock (or securities convertible into Common Stock) at
a price per share (or having a conversion price per share) less than the Current
Market Price (as defined in Section 10.06(f)(i)) on the Record Date fixed for
the determination of stockholders entitled to receive such rights or warrants,
the Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect at the opening of
business on the date after such Record Date by a fraction:
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the close of business on such Record Date
plus the total number of additional shares of Common Stock so offered
for subscription or purchase (or into which the convertible securities
so offered are convertible), and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on such Record Date
plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so offered for
subscription or purchase (or the aggregate conversion price of the
convertible securities so offered) would purchase at such Current
Market Price.
Such adjustment shall become effective immediately after the
opening of business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights or warrants. To the extent that
shares of Common Stock (or securities convertible into Common Stock) are not
delivered pursuant to such rights or warrants, upon the expiration or
termination of such rights or warrants the Conversion Rate shall be readjusted
to the Conversion Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock (or securities convertible
into Common Stock) actually delivered. In the event that such rights or warrants
are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such Record Date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
shares of
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Common Stock, there shall be taken into account any consideration received for
such rights or warrants, the value of such consideration, if other than cash, to
be determined by the Board of Directors.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"):
(x) are deemed to be transferred with such shares of
Common Stock;
(y) are not exercisable; and
(z) are also issued in respect of future issuances of
Common Stock,
shall be deemed not to have been distributed (and no adjustment to the
Conversion Rate will be required) until the occurrence of the earliest Trigger
Event. If such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to purchase
different securities, evidences of indebtedness or other assets or entitle the
holder to purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different purchase price, then the occurrence of each
such event shall be deemed to be the date of issuance and Record Date with
respect to a new right or warrant (and a termination or expiration of the
existing right or warrant without exercise by the holder thereof). In addition,
in the event of any distribution (or deemed distribution) of rights or warrants,
or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the Conversion
Rate:
(1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder of
Common Stock with respect to such rights or warrant (assuming such
holder had retained such rights or warrants), made to all holders of
Common Stock as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants all of which shall
have expired or been terminated without exercise, the Conversion Rate
shall be readjusted as if such rights and warrants had never been
issued.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness,
securities or capital stock (including dividends or other distributions of
shares of capital stock of any class or series, or similar equity interest, of
or relating to any of the Company's Subsidiaries or other business units of the
Company), cash or other assets (other than those made in connection with its
liquidation, dissolution or winding up), excluding (1) any dividend or
distribution to which Section 10.06(a) applies, (2) any rights or warrants
referred to in Section 10.06(c) and (3) any stock, securities or
51
other property or assets (including cash) distributed in connection with a
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance to which Section 10.06(b) or Section 10.09 of
this Indenture applies (any of the foregoing hereinafter in this Section
10.06(d)) called the "Distribution"), the Conversion Rate shall be increased so
that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
Record Date (as defined in Section 10.06(f)(iii)) with respect to such
distribution by a fraction:
(i) the numerator of which shall be the Current Market Price
on such Record Date, and
(ii) the denominator of which shall be the Current Market
Price on such Record Date less (A) in the case of Distributions other
than cash, the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion
of such Distributions applicable to one share of Common Stock and (B)
in the case of Distributions of cash, the amount of such Distributions
applicable to one share of Common Stock.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date for such dividend or other
distribution. However, in the event that the then fair market value (as so
determined) of the portion of the assets so distributed applicable to one share
of Common Stock is equal to or greater than the Current Market Price on the
Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion of a
Security (or any portion thereof) the amount of assets such Holder would have
received had such Holder converted such Security (or portion thereof)
immediately prior to such Record Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared except that, with respect to any dividend or
distribution consisting of Capital Stock of any class or series, or similar
equity interests, of or relating to a Subsidiary or other business unit of the
Company that is listed or quoted on the Nasdaq Stock Market or other national or
regional exchange or market, such reduction will be effective immediately prior
to the opening of business on the day following the determination of the fair
market value of such securities as provided in Section 10.06(f)(ii).
Notwithstanding the foregoing, if the Distribution distributed by the Company to
all holders of its Common Stock consists of capital stock of, or similar equity
interests in, a Subsidiary or other business unit, the Conversion Rate shall be
increased so that the same shall be equal to the price determined by multiplying
the Conversion Rate in effect on the Record Date with respect to such
distribution by a fraction:
(1) the numerator of which shall be the sum of (x) the average
Closing Sale Price of one share of Common Stock over the ten
consecutive Trading Day period (the "Spinoff Valuation Period")
commencing on and including the fifth Trading Day after the date on
which "ex-dividend trading" commences on the Common Stock on the Nasdaq
Stock Market or such other national or regional exchange or market on
which the Common Stock is then listed or quoted and (y) the average
Closing Sale Price over the
52
Spinoff Valuation Period of the portion of the Distribution so
distributed applicable to one share of Common Stock; and
(2) the denominator of which shall be the average Closing Sale
Price of one share of Common Stock over the Spinoff Valuation Period,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that the Company may in lieu of
the foregoing adjustment make adequate provision so that each holder shall have
the right to receive upon conversion the amount of Distribution such holder
would have received had such holder converted each Security on the Record Date
with respect to such distribution.
(e) In case a tender or exchange offer made by the Company or
any of its Subsidiaries for all or any portion of the Common Stock
(excluding any transactions solely involving odd lots of shares of
Common Stock) shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to
stockholders of consideration per share of Common Stock having a fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) that as of the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Closing Sale Price on the
Trading Day next succeeding the Expiration Time, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price on the
Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares
(including Purchased Shares)) at the Expiration Time multiplied by the
Closing Sale Price on the Trading Day next succeeding the Expiration
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(f) For purposes of this Section 10.06, the following terms
shall have the meanings indicated:
53
(i) "Current Market Price" means the average of the daily
Closing Prices per share of Common Stock for the five consecutive
Trading Days selected by the Company commencing not more than 10
Trading Days before, and ending not later than, the earlier of the day
in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For purposes of
this paragraph, the term "ex" date, when used with respect to any
issuance or distribution, means the first date on which the Common
Stock trades regular way on the applicable securities exchange or in
the applicable securities market without the right to receive such
issuance or distribution.
(ii) "fair market value" means the amount which a willing
buyer would pay a willing seller in an arm's length transaction;
provided that, for purposes of Section 10.06(d), with respect to any
dividend or distribution consisting of Capital Stock of any class or
series, or similar equity interests, of or relating to a Subsidiary or
other business unit of the Company that is listed or quoted on the
Nasdaq Stock Market or other national or regional stock exchange or
market, "fair market value" shall mean the number of securities
distributed in respect of each share of Common Stock multiplied by the
average of the Closing Sale Prices of those securities distributed for
the ten (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 Nasdaq Stock Market or other national
or regional exchange or market on which such securities are then listed
or quoted.
(iii) "Record Date" means, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether
such date is fixed by the Board of Directors or by statute, contract or
otherwise).
(g) The Company may make such increases in the Conversion
Rate, in addition to those required by Sections 10.06(a), (b), (c), (d) or (e)
as the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law and subject to the
Nasdaq Marketplace Rules, the Company from time to time may increase the
Conversion Rate by any amount. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to the Trustee and
each Holder at the address of such Holder as it appears in the Register a notice
of the increase, and such notice shall state the increased Conversion Rate and
the period during which it will be in effect.
(h) No adjustment in the Conversion Rate shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
Section 10.06(h) are not required to be made shall be carried forward and made,
regardless of whether the aggregate adjustment is less than 1%,
54
within one year of the first such adjustment carried forward or, if earlier, the
date on which the carried-forward adjustments first equal 1% of the Conversion
Rate in effect at the time of the first carried-forward adjustment. All
calculations under this Article X shall be made by the Company and shall be made
to the nearest cent or to the nearest one hundredth of a share, as the case may
be. No adjustment need be made for a change in the par value or no par value of
the Common Stock. To the extent the Securities become convertible into the right
to receive cash, no adjustment need be made thereafter as to the cash. Interest
shall not accrue on the cash.
(i) In any case in which this Section 10.06 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Security converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 10.03 of this Indenture.
(j) For purposes of this Section 10.06, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company, other than Common Stock issued in respect
of Common Stock.
(k) If the distribution date for the rights provided in the
Company's rights agreement, if any, occurs prior to the date a Security is
converted, the Holder of the Security who converts such Security after the
distribution date shall not be entitled to receive the rights that would
otherwise be attached (but for the date of conversion) to the shares of Common
Stock received upon such conversion (unless the Company elects to issue such
rights to such Holder); provided, however, that an adjustment shall be made to
the Conversion Rate pursuant to clause 10.06(c) as if the rights were being
distributed to the common stockholders of the Company immediately prior to such
conversion (unless the Company elects to issues such rights to such Holder). If
such an adjustment is made and the rights are later redeemed, invalidated or
terminated, then a corresponding reversing adjustment shall be made to the
Conversion Rate, on an equitable basis, to take account of such event.
(l) The Conversion Rate will not be adjusted for the issuance
of Common Stock (or securities convertible into or exchangeable for Common
Stock):
(i) under any present or future plan providing for the
reinvestment of dividends or interest payable on the Company's
securities;
(ii) in connection with the investment of additional optional
amounts in shares of Common Stock under any plan described in the
preceding subsection (i);
(iii) under any present or future employee benefit plan or
program of the Company; or
55
(iv) pursuant to any option, warrant or right or exercisable,
exchangeable or convertible security outstanding as of the date the
Securities are first issued.
SECTION 10.07. Notice of Adjustments. Whenever the Conversion
Rate is adjusted as herein provided (other than in the case of an adjustment
pursuant to the second paragraph of Section 10.06(g) for which the notice
required by such paragraph has been provided), the Company shall promptly file
with the Trustee and the Conversion Agent if other than the Trustee an Officer's
Certificate setting forth the adjusted Conversion Rate and showing in reasonable
detail the facts upon which such adjustment is based. Promptly after delivery of
such Officer's Certificate, the Company shall prepare a notice stating that the
Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective, and shall mail such
notice to each Holder at the address of such Holder as it appears in the
Register within 20 days of the effective date of such adjustment. Failure to
deliver such notice shall not effect the legality or validity of any such
adjustment.
SECTION 10.08. Notice of Certain Transactions. If:
(a) the Company takes any action that would require an
adjustment in the Conversion Rate pursuant to Sections 10.06(a), (b), (c), (d)
or (e); or
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 10.09; or
(c) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion 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 10.09. Reorganization of Company; Special
Distributions. If the Company is a party to a transaction subject to Article V
(other than a sale of all or substantially all of the properties and assets of
the Company in a transaction in which the holders of Common Stock immediately
prior to such transaction do not receive securities, cash, property or other
assets of the Company or any other Person) or a merger or binding share exchange
which reclassifies or changes its outstanding Common Stock, the Person obligated
to deliver securities, cash or other assets upon conversion of Securities shall
enter into a supplemental indenture. If the issuer of securities deliverable
upon conversion of Securities is an Affiliate of the successor Company, that
issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Security may convert it into the kind and amount of securities, cash or other
assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder had
converted the 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
56
Affiliate of a constituent Person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article X. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If any such transaction constitutes a Designated Event, the
Securities shall cease to be convertible after the fifteenth day following the
transaction giving rise to such Designated Event.
If this Section applies, none of Section 10.06(a), Section
10.06(b) or Section 10.06(c) applies.
If the Company 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 Company that would otherwise result in an
adjustment in the Conversion Rate pursuant to the provisions of Section
10.06(d), 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
converts such Security in accordance with the provisions of this Indenture shall
upon such conversion be entitled to receive, in addition to the shares of Common
Stock into which the Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of Common Stock entitled to receive the
distribution.
SECTION 10.10. Company Determination Final. Any determination
that the Company or the Board of Directors must make pursuant to Section 10.03,
Section 10.06, Section 10.09 or Section 10.12 is conclusive, final and binding
on the Holders.
SECTION 10.11. Trustee's Adjustment Disclaimer. The Trustee
has no duty to determine when an adjustment under this Article X should be made,
how it should be made or what it should be. The Trustee has no duty to determine
the Trading Price unless the Company has requested such a determination. The
Trustee has no duty to determine whether a supplemental indenture under Section
10.09 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 or the
amount of any cash issued upon conversion of Securities. The Trustee shall not
be responsible for the Company's failure to comply with this Article X. Each
Conversion Agent (other than the Company or an Affiliate of the Company) shall
have the same protection under this Section 10.11 as the Trustee.
SECTION 10.12. Successive Adjustments. After an adjustment to
the Conversion Rate under this Article X, any subsequent event requiring an
adjustment under this Article X shall cause an adjustment to the Conversion Rate
as so adjusted.
SECTION 10.13. Company's Right to Elect to Pay Cash or Common
Stock. In lieu of delivery of Common Stock upon notice of conversion of any
Securities, the Company may elect to pay holders surrendering Securities (i) an
amount in cash per $1,000 Principal
57
Amount per Security equal to the average as determined by the Company of the
Closing Sale Prices of Common Stock for the 30 consecutive Trading Days
immediately following either (a) the date of notice of election to deliver cash
as described below if the Company has not given notice of redemption, or (b) the
conversion date, in the case of conversion following the notice of redemption
specifying that the Company intends to deliver cash upon conversion, in either
case multiplied by the Conversion Rate in effect on that date, or (ii) a
combination of Common Stock and cash. The Company shall give the Trustee and the
Conversion Agent notice of the amount of Common Stock and cash to be delivered
in connection with any conversion, promptly after such amount is determined by
the Company. The Company will inform the holders through the Trustee no later
than two Business Days following the Conversion Date of its election to deliver
shares of Common Stock or to pay cash in lieu of delivery of Common Stock, or to
deliver a combination thereof, unless the Company has already informed holders
of its election in connection with its optional redemption of the Securities
pursuant to Section 3.01 herein. If the Company elects to deliver all of such
payment in Common Stock, the Common Stock will be delivered through the
Conversion Agent no later than the fifth Business Day following the Conversion
Date. If the Company elects to pay all or a portion of such payment in cash, the
payment, including any delivery of Common Stock, will be made to holders
surrendering Securities no later than the 35th Business Day following the
applicable Conversion Date. If an Event of Default (other than a default in a
cash payment upon conversion of the Securities) has occurred and is continuing,
the Company may not pay cash upon conversion of any Security or portion of a
Security (other than cash for fractional shares).
ARTICLE XI
PAYMENT OF INTEREST
SECTION 11.01. Interest Payments. 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 interest on any
Security shall be paid, in the case of a holder of $5,000,000 or more in
aggregate principal amount of the Securities, 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, if no such instructions have
been received and in the case of all other payees, by check drawn on a bank in
New York City mailed to the payee at its address set forth on the Registrar's
books. In the case of a Global Security, semiannual interest payable on any
applicable payment date will be paid to the Depositary, with respect to that
portion of such 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 Global Security to the accounts of the beneficial owners
thereof.
SECTION 11.02. Defaulted Interest. Except as otherwise
specified with respect to the Securities, any 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
58
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:
(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 (the "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 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 11.03. Interest Rights Preserved. Subject to the
foregoing provisions of this Article XI 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 semi-annual
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
59
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or delivered by courier guaranteeing overnight delivery 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:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: 000-000-0000
Attention: Corporate Secretary
Fax: 000-000-0000
with a copy of any notice given pursuant to Article VI to:
Weil, Gotshal and Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx Xxxx, Esq.
Fax: 000-000-0000
if to the Trustee:
JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx (00xx Xxxxx)
New York, New York 10004
Attention: Institutional Trust Services
Fax: 000-000-0000
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.
60
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent, Conversion Agent or co-registrar.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture (other than the initial authentication of
Securities under this Indenture), the Company shall furnish to the Trustee if
reasonably requested:
(1) an Officer's 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 12.05. Statements Required in Certificate or Opinion.
Each Officer's Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include to the
extent required by the Trustee:
(1) a statement that each person making such Officer's
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 Officer's Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
61
SECTION 12.06. 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 12.07. Rules by Trustee, Paying Agent, Conversion
Agent and Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar, Conversion Agent and the Paying Agent
may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is a
payment in respect of the Securities, no interest shall accrue for the
intervening period.
SECTION 12.09. GOVERNING LAW. THE LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES.
SECTION 12.10. No Recourse Against Others. A director,
officer, employee, agent, representative, stockholder or equity holder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successor. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 12.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One originally signed copy is
enough to prove this Indenture.
62
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.
AVATAR HOLDINGS INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
63
EXHIBIT A-1
[FORM OF FACE OF RULE 144A/REGULATION S GLOBAL SECURITY]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER
OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS
OTHER THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
A-1-1
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT
TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO
THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY,
EXCEPT AS PERMITTED BY THE SECURITIES ACT.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-1-2
AVATAR HOLDINGS INC.
4.50% Convertible Senior Note due 2024
No. A- CUSIP: 053494 AE 0
Issue Date: Xxxxx 00, 0000 Xxxxxxxxx Xxxxxx: $_______
Issue Price: $1,000
(for each $1,000 Principal Amount)
AVATAR HOLDINGS INC., a Delaware corporation, for value received,
hereby promises to pay to Cede & Co. or its registered assigns, on April 1,
2024, the principal sum of ________________________________ ($_________________)
or such greater or lesser amount as is indicated on the Schedule of Exchanges
attached hereto.
Interest Payment Dates: April 1 and October 1, commencing October 1,
2004 Regular Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side
of this Security.
A-1-3
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
Dated: AVATAR HOLDINGS INC.
By:_______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the 4.50% Convertible Senior Notes due 2024 issued under the
within-named Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Authorized Officer
Dated:
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[FORM OF REVERSE SIDE OF NOTE]
4.50% Convertible Senior Note due 2024
1. Interest.
The Company promises to pay interest in cash on the Principal Amount of
this Note at the rate of 4.50% per year from the Issue Date, or from the most
recent date to which interest has been paid or provided for. During such period,
the Company will pay interest semiannually in arrears on each Interest Payment
Date, commencing on October 1, 2004, to Holders of record at the close of
business on each Regular Record Date immediately preceding such Interest Payment
Date. Each payment of interest on the Securities will include interest accrued
through the day immediately preceding the most recent Interest Payment Date (or
the Repurchase Date, Redemption Date, Designated Event Repurchase Date or, in
certain circumstances, the Conversion Date, as the case may be). Any payment
required to be made on any day that is not a Business Day will be made on the
next succeeding Business Day and no interest shall accrue for the intervening
period. Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months. In accordance with the Registration Rights Agreement
dated March 30, 2004 between Avatar Holdings Inc. and Citigroup Global Markets
Inc, the interest rate on this Note may be increased under the circumstances set
forth therein.
If installments of interest due hereon are not paid when due in
accordance with the preceding paragraph, then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at 4.50% per year,
as the case may be, in effect following the date such overdue amount was due,
compounded semi-annually, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand.
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 interest on any Security shall be paid, in the case of a holder of
$5,000,000 or more in aggregate principal amount of the Securities, 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,
if no such instructions have been received and in the case of all other payees,
by check drawn on a bank in New York City mailed to the payee at its address set
forth on the Registrar's books.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Principal Amount, Redemption Price, Designated Event
Repurchase Price, Repurchase Price and at Stated Maturity to Holders who
surrender Securities to a Paying Agent to collect such payments in respect of
the Securities. In addition, the Company will pay interest from the Issue Date
as more fully described in paragraph 1 hereof. 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
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public and private debts. However, subject to paragraph 1 hereof, the Company
may make such cash payments by check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, JPMorgan Chase Bank (the "Trustee") will act as Paying
Agent, Conversion Agent and Registrar. The Company may appoint and change any
Paying Agent, Conversion Agent and Registrar or co-registrar 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, City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may act as Paying
Agent, Conversion Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Securities pursuant to an Indenture dated as of
March 30, 2004 (the "Indenture"), between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Securities themselves and the Trust Indenture
Act of 1939, as in effect from time to time (the "TIA"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the TIA for a statement of those terms.
The Securities are unsecured and senior obligations of the Company
limited to $120,000,000 aggregate Principal Amount (subject to Section 2.07 of
the Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. Subject to the terms
and conditions of the Indenture, 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 Price at any time on or after
April 5, 2011.
If redeemed at the option of the Company, the Securities will be
redeemed for cash at a price equal to 100% of the Principal Amount (the
"Redemption Price"), plus accrued and unpaid interest.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of, and accrued and unpaid 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, interest
shall cease to accrue on such Securities (or portions thereof) on such
Redemption Date and the Holder thereof shall have no other rights as such (other
than the right to receive the Redemption Price upon
A-1-6
surrender of such Security). Securities in denominations larger than $1,000 of
Principal Amount may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount.
7. Repurchase at the Option of the Holder on Specified Dates.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to repurchase, at the option of the Holder, the Securities held
by such Holder on April 1, 2011, April 1, 2014 and April 1, 2019 at a Repurchase
Price equal to 100% of the Principal Amount of such Securities on the applicable
Repurchase Date plus accrued and unpaid interest, if any, to but not including
the Repurchase Date, upon delivery of a Repurchase 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 Repurchase Date until the
close of business on the third Business Day prior to such Repurchase Date and
upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.
Holders have the right to withdraw any Repurchase Notice by delivering
to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash sufficient to pay the Repurchase Price of all Securities or
portions thereof to be purchased as of the Repurchase Date is deposited with the
Paying Agent on the Business Day following the Repurchase Date, interest shall
cease to accrue on such Securities (or portions thereof) on such Repurchase Date
and the Holder thereof shall have no other rights as such (other than the right
to receive the Repurchase Price upon surrender of such Security).
8. Conversion.
Conversion Based on Common Stock Price. Subject to the provisions of
this paragraph 8 and notwithstanding the fact that any other condition to
conversion described below has not been satisfied, Holders may convert the
Securities into Common Stock at any time during any calendar quarter (but only
during such calendar quarter) commencing after June 30, 2004 if the Closing Sale
Price of the Common Stock for at least 20 Trading Days in a period of 30
consecutive Trading Days ending on the last Trading Day of the preceding
calendar quarter is greater than 120% of the Conversion Price on the last
Trading Day of such preceding fiscal quarter. The "Conversion Price" shall be
equal to $1,000 divided by the Conversion Rate then in effect.
Conversion Based on Trading Price of Securities. Subject to the
provisions of this paragraph 8 and the exceptions in the paragraph below and
notwithstanding the fact that any other condition to conversion described herein
has not been satisfied, Holders may convert the Securities into Common Stock
during each five Business Day period after any five-consecutive-Trading Day
period in which the Trading Price per $1,000 Principal Amount of the Securities
for each day of such five-Trading Day period was less than 98% of the product of
the Closing Sale Price on the applicable date and the number of shares of Common
Stock issuable upon conversion of $1,000 Principal Amount of the Securities (the
"Trading Price Condition").
A-1-7
Notwithstanding the foregoing paragraph, if on the date of any
conversion pursuant to the Trading Price Condition that is on or after April 1,
2019, the Closing Sale Price is greater than the Conversion Price, then Holders
will receive, in lieu of Common Stock based on the Conversion Rate, cash or
Common Stock or a combination of cash and Common Stock, at the Company's option,
with a value equal to the Principal Amount of such Securities plus accrued and
unpaid interest, as of the Conversion Date ("Principal Value Conversion"). The
Company will notify Holders who surrender their Securities for conversion, if it
is a Principal Value Conversion, by the second Trading Day following the date of
conversion, whether the Company will pay them all or a portion of the Principal
Amount of such Securities plus accrued and unpaid interest in cash, Common Stock
or a combination of cash and Common Stock, and in what percentage. Any Common
Stock delivered upon a Principal Value Conversion will be valued at the greater
of the Conversion Price on the Conversion Date and the Applicable Stock Price as
of the Conversion Date. The Company will pay such Holders any portion of the
Principal Amount plus accrued and unpaid interest to be paid in cash and deliver
Common Stock with respect to any portion of the Principal Amount plus accrued
and unpaid interest to be paid in Common Stock no later than the third Business
Day following the determination of the Applicable Stock Price. The Company shall
give the Trustee and the Conversion Agent notice of the amount of Common Stock
and cash to be delivered in connection with any such conversion, promptly after
such amount is determined by the Company.
The "Applicable Stock Price" means, in respect of a date of
determination, the average of the Closing Sales Price per share of Common Stock
over the five Trading Day period starting on the third Trading Day following
such date of determination.
The "Trading Price" of the Securities on any date of determination
means the average of the secondary market bid quotations obtained by the Trustee
for $2,000,000 Principal Amount of the Securities at approximately 3:30 p.m.,
New York City time, on such determination date from three independent nationally
recognized securities dealers selected by the Company; provided that if three
such bids cannot reasonably be obtained by the Trustee, but two such bids are
obtained, then the average of the two bids shall be used, and if only one such
bid can reasonably be obtained by the Trustee, that one bid shall be used. If
the Trustee cannot reasonably obtain at least one bid for $2,000,000 Principal
Amount of the Securities from a nationally recognized securities dealer, then
the trading price per $1,000 Principal Amount of the Securities will be deemed
to be less than 98% of the product of (a) the Closing Sale Price of Common Stock
on such date and (b) the number of shares of Common Stock issuable upon
conversion of $1,000 Principal Amount of the Securities.
The Trustee (or other Conversion Agent appointed by the Company) shall
have no obligation to determine the Trading Price unless the Company has
requested such a determination; and the Company shall have no obligation to make
such request unless a Holder provides it with reasonable evidence that the
Trading Price per $1,000 Principal Amount of Securities would be less than 98%
of the product of the Closing Sale Price of Common Stock and the number of
shares of Common Stock issuable upon conversion of $1,000 Principal Amount of
Securities. If such evidence is provided, the Company shall instruct the Trustee
(or other Conversion Agent) to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 Principal
A-1-8
Amount of Securities is greater than 98% of the product of the Closing Sale
Price and the number of shares issuable upon conversion of $1,000 Principal
Amount of the Securities.
Conversion upon Redemption. Subject to the provisions of this paragraph
8 and notwithstanding the fact that any other condition described herein to
conversion has not been satisfied, a Holder may convert into Common Stock a
Security or portion of a Security which has been called for redemption pursuant
to paragraph 5 hereof, provided such Securities are surrendered for conversion
prior to the close of business on the second Business Day immediately preceding
the Redemption Date.
Conversion Upon Certain Distributions. Subject to the provisions of
this paragraph 8 and notwithstanding the fact that any other condition to
conversion described herein has not been satisfied, in the event that the
Company declares a dividend or distribution described in Section 10.06(d) of the
Indenture, or a dividend or a distribution described in Section 10.06(e) of the
Indenture where, the fair market value of such dividend or distribution per
share of Common Stock, as determined in the Indenture, exceeds 5% of the Closing
Sale Price of the Common Stock on the Business Day immediately preceding the
date of declaration for such dividend or distribution, the Securities may be
surrendered for conversion beginning on the date the Company gives notice to the
Holders of such right, which shall not be less than 20 days prior to the date of
such dividend or distribution and Securities may be surrendered for conversion
at any time thereafter until the close of business on the Business Day prior to
the date of such dividend or distribution or until the Company announces that
such dividend or distribution will not take place.
Conversion Upon Occurrence of Certain Corporate Transactions. Subject
to the provisions of this paragraph 8 and notwithstanding the fact that any
other condition described herein to conversion has not been satisfied, in the
event the Company is a party to a consolidation, merger or binding share
exchange or transfer of all or substantially all of the Company's assets
pursuant to which the Common Stock would be converted into cash, securities or
other property as set forth in Section 10.09 of the Indenture, the Securities
may be surrendered for conversion at any time from and after the date which is
15 days prior to the date announced by the Company as the anticipated effective
time until 15 days after the actual effective date of such transaction, and at
the effective time of such transaction the right to convert a Security into
Common Stock will be deemed to have changed into a right to convert it into the
kind and amount of cash, securities or other property which the Holder would
have received if the Holder had converted its Security into Common Stock
immediately prior to the transaction. If such transaction also constitutes a
Designated Event, a Holder will be able to require the Company to repurchase all
or a portion of such Holder's Securities pursuant to paragraph 10 and Section
3.13 of the Indenture. In addition, if such transaction constitutes a Designated
Event, the Securities will cease to be convertible after the fifteenth day
following the actual effective date of the transaction giving rise to such
Designated Event.
Upon conversion, the Company has the right to deliver cash or a
combination of cash and Common Stock.
A-1-9
A Security in respect of which a Holder has delivered a Repurchase
Notice or Designated Event Repurchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is 19.0006 shares of Common Stock per each
$1,000 of Principal Amount, subject to adjustment for certain events described
in the Indenture. The Company will deliver cash in lieu of any fractional share
of Common Stock. The ability to surrender Securities for conversion will expire
at the close of business on the Business Day preceding the Stated Maturity.
Interest will not be paid on Securities that are converted; provided,
however, that Securities surrendered for conversion during the period 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 shall be entitled
to receive such interest payable on such Securities on the corresponding
Interest Payment Date, and Securities surrendered for conversion during such
periods, except for Securities to be redeemed within such period, must be
accompanied by payment of an amount equal to the interest with respect thereto
that the registered Holder is to receive.
Subject to the provisions of the Indenture relating to the requirements
for convertibility of a Security, to exercise its conversion right, a Holder
must (1) complete and manually sign the conversion notice (or complete and
manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent, (2) surrender the Security to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Company or the Trustee, (4) pay funds equal to the
interest payable on the Securities being converted payable on the next Interest
Payment Date, if required, and (5) pay any transfer or similar taxes, if
required.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture. On conversion of a Security, accrued but unpaid interest
attributable to the period from the most recent Interest Payment Date through
the Conversion Date shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with the cash payment, if any, in lieu of
fractional shares) in exchange for the Security being converted pursuant to the
terms hereof; and 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
issued, to the extent thereof, first in exchange for accrued but unpaid interest
through the Conversion Date, and the balance, if any, of such fair market value
of such Common Stock (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the Security being converted pursuant to the
provisions hereof.
The Conversion Rate will be adjusted in certain circumstances as
provided in the Indenture.
A-1-10
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the second Business Day prior to the Redemption
Date, may be deemed to be purchased from the Holders of such Securities at an
amount not less than the Redemption Price, by one or more investment bankers or
other purchasers who may agree with the Company to purchase such Securities from
the Holders, to convert them into Common Stock of the Company and to make
payment for such Securities to the Trustee in trust for such Holders.
10. Repurchase Right Upon a Designated Event.
In the event that a Designated Event shall occur, then each Holder
shall have the right, at the Holder's option, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder's Notes, or any portion of the principal amount thereof that
is equal to $1,000 or any integral multiple of $1,000 in excess thereof, on the
date that is 30 days after the date of the Designated Event Notice at a
repurchase price equal to 100% of the principal amount of the Notes to be
repurchased plus interest, if any, accrued and unpaid to the Designated Event
Repurchase Date; provided, however, that installments of interest on Notes whose
Stated Maturity is on or prior to the Designated Event Repurchase Date shall be
payable to the Holders of such Notes, or one or more Predecessor Securities,
registered as such on the relevant Record Date according to their terms and the
provisions of Section 3.13 of the Indenture.
A notice will be given by or on behalf of the Company to the Holders as
provided in the Indenture. To exercise a repurchase right, a Holder must deliver
to the Trustee a written notice as described in the Indenture.
Holders have the right to withdraw any Designated Event Repurchase
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 sufficient to pay the Designated Event Repurchase Price of all
Securities or portions thereof to be purchased as of the Designated Event
Repurchase Date is deposited with the Paying Agent on the Business Day following
the Designated Event Repurchase Date, interest shall cease to accrue on such
Securities (or portions thereof) on such Designated Event Repurchase Date and
the Holder thereof shall have no other rights as such (other than the right to
receive the Designated Event Repurchase Price upon surrender of such Security).
11. Events of Default and Remedies.
If an Event of Default with respect to the Securities shall occur and
be continuing, the Principal Amount of all Securities may be declared due and
payable immediately in the manner and with the effect provided in the Indenture.
A-1-11
12 Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Repurchase Notice or Designated Event
Repurchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
13. Persons Deemed Owners.
Subject to Section 11.01 of the Indenture, the registered Holder of
this Security may be treated as the owner of this Security for all purposes.
14. 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.
15. Amendments and Waivers.
The Company and the Trustee may, subject to certain exceptions as
provided in the Indenture, enter into an indenture or indentures supplemental to
the Indenture to add any provisions to or to change or eliminate any provisions
of the Indenture or of any other indenture supplemental thereto or to modify the
rights of the Holders of Notes with the written consent of the Holders of not
less than a majority of the aggregate principal amount of the Notes.
The Indenture also contains provisions permitting the Holders of a
majority in aggregate Principal Amount of the Notes on behalf of the Holders of
all the Notes, to waive certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise
A-1-12
deal with and collect obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or their Affiliates with the same rights
it would have if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee, agent, representative, stockholder or
equity holder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
18. Authentication.
This Note 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.
19. 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).
20. GOVERNING LAW.
THE LAWS 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 that has in it the text of
this Security in larger type. Requests may be made to:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
A-1-13
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.
_______________________________________________________
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
To convert only part of this Security, state the Principal Amount to be
converted (which must be $1,000 or an integral multiple of $1,000):
$_______________________________________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
_______________________________________________________
(Insert other person's soc. sec. or tax ID no.)
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
(Print or type other person's name, address and zip code)
A-1-14
_________________________________________________________
Date: ________________ Your Signature:___________________________________
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
A-1-15
SCHEDULE OF EXCHANGES
The following redemptions, repurchases conversions or
exchanges of a part of this Global Security for Certificated Securities have
been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Security authorized
Principal Amount of Principal Amount of Following such decrease signatory of
Date of Transaction this Global Security this Global Security (or increase) Trustee
------------------- --------------------- -------------------- ------------------------ -------------
X-0-00
XXXXXXX X-0
[FORM OF CERTIFICATED SECURITY]
[INCLUDE IF SECURITY IS A CERTIFICATED SECURITY TO BE HELD BY AN
INSTITUTIONAL ACCREDITED INVESTOR--IN CONNECTION WITH ANY TRANSFER, THE HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOLLOWING RESTRICTIONS.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER
OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS
OTHER THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT
TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO
THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY,
EXCEPT AS PERMITTED BY THE SECURITIES ACT.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-2-1
AVATAR HOLDINGS INC.
4.50% Convertible Senior Note due 2024
No. [ ] CUSIP: 053494 AE 0
Issue Date: March 30, 2004 Principal amount: $__________
Issue Price: $1,000
(for each $1,000 Principal Amount)
AVATAR HOLDINGS INC., a Delaware corporation, for value received,
hereby promises to pay to ________________or its registered assigns, on April 1,
2024, the principal sum of _______________________ DOLLARS ($________).
Interest Payment Dates: April 1 and October 1, commencing October 1,
2004 Regular Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side
of this Security.
A-2-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
Dated:
AVATAR HOLDINGS INC.
By: ____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the 4.50% Convertible Senior Notes due 2024 issued under the
within-named Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Authorized Officer
Dated:
A-2-3
[FORM OF REVERSE SIDE OF CERTIFICATED SECURITY IS THE SAME AS THE FORM OF
REVERSE SIDE OF RULE 144A/REGULATION S GLOBAL SECURITY]
X-0-0
XXXXXXX X-0
[FORM OF UNRESTRICTED GLOBAL SECURITY]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-3-1
AVATAR HOLDINGS INC.
4.50% Convertible Senior Note due 2024
No. [ ] CUSIP: 053494 AE 0
Issue Date: March 30, 2004 Principal amount: $__________
Issue Price: $1,000
(for each $1,000 Principal Amount)
AVATAR HOLDINGS INC., a Delaware corporation, for value received,
hereby promises to pay to Cede & Co. or its registered assigns, on April 1,
2024, the principal sum of _______________________ DOLLARS ($________) or such
greater or lesser amount as is indicated on the Schedule of Exchanges attached
hereto.
Interest Payment Dates: April 1 and October 1, commencing October 1,
2004 Regular Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side
of this Security.
A-3-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
Dated:
AVATAR HOLDINGS INC.
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the 4.50% Convertible Senior Notes due 2024 issued under the
within-named Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Authorized Officer
Dated:
A-3-3
[FORM OF REVERSE SIDE OF UNRESTRICTED GLOBAL SECURITY IS THE SAME AS THE FORM OF
REVERSE SIDE OF RULE 144A/REGULATION S GLOBAL SECURITY]
A-3-4
EXHIBIT B
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) (or any successor provision) under the Securities Act
of 1933, as amended (the "Securities Act"), the undersigned registered owner of
this Security hereby certifies with respect to $____________ Principal Amount of
the above-captioned securities presented or surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer, or for exchange or
conversion where the securities issuable upon such exchange or conversion are to
be registered in a name other than that of the undersigned registered owner
(each such transaction being a "Transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
- The 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 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) 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 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
