Exhibit 4.2
EXECUTION VERSION
This
TWELFTH SUPPLEMENTAL INDENTURE is dated as of June 3, 2011 (this “
Twelfth
Supplemental Indenture”), by and among
PROLOGIS, a real estate investment trust organized under
the laws of the State of Maryland having its principal office at 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx
00000 (the “
Company”),
PROLOGIS, INC., a corporation organized under the laws of the State
of Maryland having its principal office at Xxxx 0, Xxx 0, Xxx Xxxxxxxxx, XX 00000, formerly known
as AMB Property Corporation (the “
Surviving Entity”), and U.S. BANK NATIONAL ASSOCIATION
(as successor in interest to State Street Bank and Trust Company), having a corporate trust office
at Corporate Trust Services, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as trustee (in
such capacity, the “
Trustee”) under the Base Indenture (as defined below).
RECITALS
WHEREAS, the Company and the Trustee have heretofore entered into an Indenture, dated as of
March 1, 1995, as amended by a First Supplemental Indenture, dated as of February 9, 2005, a Second
Supplemental Indenture, dated as of November 2, 2005, a Third Supplemental Indenture, dated as of
November 2, 2005, a Fourth Supplemental Indenture, dated as of March 26, 2007 (the “Fourth
Supplemental Indenture”), a Fifth Supplemental Indenture, dated as of November 8, 2007 (the
“Fifth Supplemental Indenture”), a Sixth Supplemental Indenture, dated as of May 7, 2008
(the “Sixth Supplemental Indenture”), a Seventh Supplemental Indenture, dated as of May 7,
2008, an Eighth Supplemental Indenture, dated as of August 14, 2009, a Ninth Supplemental
Indenture, dated as of October 1, 2009, a Tenth Supplemental Indenture, dated as of March 16, 2010
(the “Tenth Supplemental Indenture,” and, together with the Fourth Supplemental Indenture,
the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, the “Convertible Notes
Supplemental Indentures”) and an Eleventh Supplemental Indenture, dated as of June 2, 2011 (as
so supplemented, the “Base Indenture”), pursuant to which the Company issued its 2.25%
Convertible Senior Notes due 2037 (the “2.25% Convertible Senior Notes”), 1.875%
Convertible Senior Notes due 2037 (the “1.875% Convertible Senior Notes”), 2.625%
Convertible Senior Notes due 2038 (the “2.625% Convertible Senior Notes”) and 3.25%
Convertible Senior Notes due 2015 (the “3.25% Convertible Senior Notes,” and, together with
the 2.25% Convertible Senior Notes, the 1.875% Convertible Senior Notes and the 2.625% Convertible
Senior Notes, the “Convertible Notes”).
WHEREAS, Section 8.06(a) of each of the Convertible Notes Supplemental Indentures provides
that if any consolidation, merger or combination of the Company with another Person occurs, as a
result of which holders of Common Shares shall be entitled to receive cash, securities or other
property or assets with respect to or in exchange for such Common Shares (any such event a
“Merger Event”), the Company and the successor entity, as applicable, shall execute with
the Trustee a supplemental indenture providing for the conversion and settlement of the Convertible
Notes as set forth in each of the Convertible Notes Supplemental Indentures;
WHEREAS, Section 8.06(b) of each of the Convertible Notes Supplemental Indentures provides
that at the effective time of a Merger Event, the right to convert each $1,000 principal amount of
Convertible Notes will be changed to a right to convert such notes by reference to the
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kind and amount of cash, securities or other property or assets that a holder of a number of Common
Shares equal to the specified conversion rate immediately prior to such transaction would have
owned or been entitled to receive (the “Reference Property”) such that from and after the
effective time of such transaction, a noteholder will be entitled to convert its Convertible Notes,
subject to the successor’s right to deliver cash, common shares or common stock of such successor
or a combination thereof, as applicable, in lieu of the common shares otherwise deliverable, into
the same type (and in the same proportion) of Reference Property, based on the Daily Settlement
Amounts of Reference Property in an amount equal to the applicable conversion rate, as described
under Section 8.02(b) of each Convertible Notes Supplemental Indenture;
WHEREAS, Section 8.06(d) of each of the Convertible Notes Supplemental Indentures provides
that the provisions of Section 8.06 shall similarly apply to successive Merger Events;
WHEREAS, on January 30, 2011, the Company entered into an Agreement and Plan of Merger by and
among the Company, the Surviving Entity, AMB Property, L.P., a limited partnership organized under
the laws of the State of Delaware, Upper Pumpkin LLC, a limited liability company organized under
the laws of the State of Delaware (“
Upper Pumpkin”), New Pumpkin Inc., a corporation
organized under the laws of the State of Maryland (“
New Pumpkin”), and Pumpkin LLC, a
limited liability company organized under the laws of the State of Delaware (“
Pumpkin
LLC”), as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated March 9, 2011
(as so amended, the “
Merger Agreement”), pursuant to which, among other things: (i) the
Company was reorganized into an UPREIT structure by merging Pumpkin LLC with and into the Company,
with the Company continuing as the surviving entity and as a direct, wholly-owned subsidiary of
Upper Pumpkin and an indirect wholly-owned subsidiary of New Pumpkin (the “
ProLogis
Merger”), whereby each outstanding Common Share was converted into one newly issued share of
New Pumpkin common stock (“
New Pumpkin Common Stock”) and (ii) following the
ProLogis
Merger, New Pumpkin was merged with and into the Surviving Entity, with the Surviving Entity
continuing as the surviving corporation under the name “
Prologis, Inc.” (the “
Topco
Merger”), whereby each outstanding share of New Pumpkin common stock was converted into the
right to receive 0.4464 of a newly issued share of common stock, par value $0.01 per share, of the
Surviving Entity (the “
Surviving Entity Common Stock”);
WHEREAS, the shares of Surviving Entity Common Stock into which the shares of New Pumpkin
Common Stock have been converted into the right to receive are Reference Property as provided in
Section 8.06(b) of the Convertible Notes Supplemental Indentures;
WHEREAS, the Board of Directors of the Surviving Entity and the Board of Trustees of the
Company have duly adopted resolutions authorizing the Surviving Entity and the Company,
respectively, to execute and deliver this
Twelfth Supplemental Indenture;
WHEREAS, the Topco Merger has been consummated on the date hereof and this
Twelfth
Supplemental Indenture is being executed and delivered concurrently therewith; and
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WHEREAS, all things necessary to make the Base Indenture, as hereby modified, a valid
agreement of the Surviving Entity and the Company, in accordance with its terms, have been done.
For and in consideration of the premises and of the covenants contained herein and in the Base
Indenture, the Surviving Entity, the Company and the Trustee covenant and agree, for the equal and
proportionate benefit of all Holders of the Convertible Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.02
Definitions. For all purposes of this
Twelfth Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture,
(b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;
(c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this
Twelfth Supplemental Indenture.
(d) All other terms used in this
Twelfth Supplemental Indenture, which are defined in the
Trust Indenture Act or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires) shall have the
meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of the execution of this Twelfth Supplemental Indenture. The words “herein,” “hereof,”
“hereunder,” and words of similar import refer to this Twelfth Supplemental Indenture as a whole
and not to any particular Article, Section or other subdivision.
ARTICLE II
EFFECT OF MERGER
Section 2.01 In accordance with Section 8.06 of the Convertible Notes Supplemental Indentures,
on and after the effective time of the Topco Merger, the right to convert each $1,000 principal
amount of Convertible Notes into New Pumpkin Common Stock will be changed to a right to exchange
such Convertible Notes for that number of shares of Surviving Entity Common Stock that such holder
of Convertible Notes would have owned or been entitled to receive immediately after the effective
time of the Topco Merger if such holder had converted its
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Convertible Notes into shares of New Pumpkin Common Stock immediately prior to the effective
time of the Topco Merger, subject to any subsequent adjustments as provided in Section 8.04 of the
Convertible Notes Supplemental Indentures. The Surviving Entity shall provide the Company, free of
preemptive rights and free from all taxes, liens and charges with respect to the issuance thereof,
a sufficient number of fully paid and non-assessable shares of Surviving Entity Common Stock as may
be necessary to deliver from time to time to exchanging holders of Convertible Notes as such
Convertible Notes are presented for exchange.
Section 2.02 The terms of the 2.25% Convertible Senior Notes are amended and restated in their
entirety as set forth in Annex A hereto to give effect to the Topco Merger.
Section 2.03 The terms of the 1.875% Convertible Senior Notes are amended and restated in
their entirety as set forth in Annex B hereto to give effect to the Topco Merger.
Section 2.04 The terms of the 2.625% Convertible Senior Notes are amended and restated in
their entirety as set forth in Annex C hereto to give effect to the Topco Merger.
Section 2.05 The terms of the 3.25% Convertible Senior Notes are amended and restated in their
entirety as set forth in Annex D hereto to give effect to the Topco Merger.
ARTICLE III
MISCELLANEOUS
Section 3.01 Except as expressly modified or amended hereby, the Base Indenture continues in
full force and effect and is in all respects confirmed, ratified and preserved. Notwithstanding
the foregoing, in the case of conflict the provisions of this Twelfth Supplemental Indenture shall
control.
Section 3.02 This Twelfth Supplemental Indenture and all its provisions shall be deemed a part
of the Base Indenture in the manner and to the extent herein and therein provided.
Section 3.03 This Twelfth Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of
New York.
Section 3.04 This Twelfth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 3.05 The Trustee shall not have any responsibility for the Recitals, which are made
only by the Company and the Surviving Entity, or for the validity or sufficiency of this Twelfth
Supplemental Indenture.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Twelfth Supplemental Indenture to be
duly executed as of the date first written above.
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PROLOGIS
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Managing Director & Assistant Secretary |
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[Seal]
Attest:
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
General Counsel & Secretary |
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PROLOGIS, INC.
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Chief Integration Officer |
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[Seal]
Attest:
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By: |
/s/ Xxxxxxx X. Xxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Senior Vice President |
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By: |
/s/ Xxxxxxx X. Xxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Vice President |
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[Signature Page to the Twelfth Supplemental Indenture]
ANNEX A
2.25% Convertible Senior Notes due 2037
Originally issued March 26, 2007
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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Section 1.01 Relation to Base Indenture |
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1 |
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Section 1.02 Definitions |
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1 |
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ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES |
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Section 2.01 Designation and Amount |
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Section 2.02 Form of Notes |
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Section 2.03 Date and Denomination of Notes; Payments of Interest |
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Section 2.04 Intentionally Omitted |
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Section 2.05 Execution, Authentication and Delivery of Notes |
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Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on
Transfer; Depositary |
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Section 2.07 Additional Notes; Repurchases |
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12 |
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Section 2.08 No Sinking Fund |
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Section 2.09 Ranking |
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ARTICLE III REDEMPTION |
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Section 3.01 Right to Redeem |
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Section 3.02 Selection of Notes to be Redeemed |
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Section 3.03 Notice of Redemption |
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ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY |
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Section 4.01 Payment of Principal and Interest |
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Section 4.02 Maintenance of Office or Agency for Exchange Agent |
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Section 4.03 Rule 144A Information Requirement |
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Section 4.04 Additional Interest Notice |
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Section 4.05 Exclusion of Certain Provisions From Base Indenture |
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ARTICLE V DEFAULTS AND REMEDIES |
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15 |
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Section 5.01 Events of Default |
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Section 5.02 Article Five of Base Indenture |
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ARTICLE VI SUPPLEMENTAL INDENTURES |
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Section 6.01 Supplemental Indentures Without Consent of Noteholders |
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Section 6.02 Modification and Amendment with Consent of Noteholders |
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A-i
TABLE OF CONTENTS
(continued)
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Section 6.03 Effect of Supplemental Indentures |
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Section 6.04 Article Nine of Base Indenture |
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ARTICLE VII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE |
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Section 7.01 Company May Consolidate, Etc. on Certain Terms |
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ARTICLE VIII EXCHANGE OF NOTES |
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Section 8.01 Exchange Privilege |
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Section 8.02 Exchange Procedures |
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Section 8.03 Reserved |
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Section 8.04 Adjustment of Exchange Rate |
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Section 8.05 Sufficient Shares to be Delivered |
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Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale |
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Section 8.07 Certain Covenants |
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Section 8.08 Responsibility of Trustee |
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Section 8.09 Notice to Holders Prior to Certain Actions |
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Section 8.10 Stockholder Rights Plans |
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Section 8.11 Ownership Limit |
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ARTICLE IX REPURCHASE OF NOTES AT OPTION OF HOLDERS |
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Section 9.01 Repurchase of Securities at Option of the Holder on Specified
Dates |
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Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change |
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ARTICLE X MISCELLANEOUS PROVISIONS |
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Section 10.01 Ratification of Base Indenture |
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Section 10.02 Provisions Binding on Company’s Successors |
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Section 10.03 Official Acts by Successor Corporation |
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Section 10.04 Addresses for Notices, Etc |
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Section 10.05 Governing Law |
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Section 10.06 Non-Business Day |
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Section 10.07 Benefits of Indenture |
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Section 10.08 Table of Contents, Headings, Etc |
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Section 10.09 Execution in Counterparts |
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A-ii
TABLE OF CONTENTS
(continued)
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Section 10.10 Trustee |
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Section 10.11 Further Instruments and Acts |
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Section 10.12 Waiver of Jury Trial |
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Section 10.13 Force Majeure |
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2.25% Convertible Senior Notes due 2037
ARTICLE I
DEFINITIONS
Section 1.01 Relation to Base Indenture. This Annex A of the Twelfth Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02 Definitions. For all purposes of this Annex A of the Twelfth Supplemental
Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture;
(b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;
(c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Annex A of the Twelfth Supplemental Indenture; and
(d) All other terms used in this Annex A of the Twelfth Supplemental Indenture, which are
defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires) shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of the execution of this Annex A of the Twelfth Supplemental Indenture. The
words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Annex A of the
Twelfth Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the singular.
“Additional Interest” shall have the meaning specified for Additional Interest in the
Registration Rights Agreement.
“Additional Interest Notice” shall have the meaning specified in Section 4.04.
“Additional Shares” shall have the meaning specified in Section 8.01(g).
“Board of Directors” means the board of directors of Parent or, if Parent shall be succeeded
by a corporation pursuant to Article VII, the board of directors of Parent’s corporate successor or
any committee of such applicable board of directors duly authorized to act generally or in any
particular respect hereunder.
“Board of Trustees” means the board of trustees of the Company or, if the Company shall be
succeeded by a corporation pursuant to Article VII, the board of trustees or directors of
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the Company’s corporate successor or any committee of such applicable board duly authorized to
act generally or in any particular respect hereunder.
“
Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which
banks in The City of
New York or The City of Boston are not required or authorized by law or
executive order to be closed.
“cash percentage” shall have the meaning specified in Section 8.02(a)(4).
“cash percentage notice” shall have the meaning specified in Section 8.02(a)(4).
“
close of business” means 5:00 p.m. (
New York City time).
“Common Stock” means, subject to Section 8.06, the common stock of Parent, par value $0.01 per
share, at the date of the Twelfth Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of Parent and that are not subject to redemption by Parent;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
“
Company” means
ProLogis (to be known as
Prologis), a Maryland real estate investment trust,
and subject to the provisions of Article VII, shall include its successors and assigns.
“Company Put Right Notice” shall have the meaning specified in Section 9.01(c).
“Company Put Right Notice Date” shall have the meaning specified in Section 9.01(c).
“Daily Exchange Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, one-twentieth (1/20) of the product of (a) the applicable Exchange Rate and (b)
the Daily VWAP of the Common Stock (or the Reference Property, if applicable) on such day.
“Daily Settlement Amount,” for each of the 20 Trading Days during the Observation Period,
shall consist of:
(A) cash equal to the lesser of $50 and the Daily Exchange Value relating to such day;
and
(B) if such Daily Exchange Value exceeds $50, a number of shares of Common Stock equal
to (A) the difference between such Daily Exchange Value and $50, divided by (B) the Daily
VWAP of the shares of Common Stock for such day, subject to the Company’s right to deliver
cash in lieu of all or a portion of such shares of Common Stock pursuant to Section
8.02(a)(4) hereof.
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“
Daily VWAP” for the Common Stock means, for each of the 20 consecutive Trading Days during
the Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page PLD <equity> AQR in respect of the period from 9:30 a.m.
to 4:00 p.m. (
New York City time) on such Trading Day (or if such volume-weighted average price is
unavailable, the market value of one share of Common Stock on such Trading Day as the Board of
Trustees determines in good faith using a volume-weighted method).
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in the Base Indenture as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Annex A of the Twelfth Supplemental Indenture, and thereafter, “Depositary” shall mean or
include such successor.
“Distributed Property” shall have the meaning specified in Section 8.04(c).
“Dividend Threshold Amount” shall have the meaning specified in Section 8.04(d).
“Effective Date” shall have the meaning specified in Section 8.01(g)(ii).
“Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.
“Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other equity security
trade on the applicable exchange or in the applicable market, regular way, without the right to
receive such issuance or distribution.
“Ex-Dividend Date” means, with respect to Section 8.01(e), the first date upon which a sale of
the shares of Common Stock does not automatically transfer the right to receive the relevant
dividend from the seller of the shares of Common Stock to its buyer.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Agent” shall mean the Trustee or any successor office or agency where the Notes may
be surrendered for exchange.
“Exchange Date” shall have the meaning specified in Section 8.02(c).
“Exchange Obligation” shall have the meaning specified in Section 8.01(a).
“Exchange Price” means as of any date $1,000 divided by the Exchange Rate as of such date.
“Exchange Rate” shall have the meaning specified in Section 8.01(a).
“Exchange Trigger Price” shall have the meaning specified in Section 8.01(c).
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“Fundamental Change” shall be deemed to occur upon the consummation of any transaction or
event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with which more than
50% of the shares of Common Stock are exchanged for, converted into, acquired for or constitutes
solely the right to receive, consideration which is not at least 90% common stock (or American
Depositary Shares representing shares of common stock) that is: (a) listed on, or immediately after
the consummation of such transaction or event, will be listed on, a United States national
securities exchange or (b) approved, or immediately after such transaction or event will be
approved, for listing or quotation on any United States system of automated dissemination of
quotations of securities prices.
“Fundamental Change Company Notice” shall have the meaning specified in Section 9.02(b).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 9.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 9.02(a)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 9.02(a).
“Global Note” shall have the meaning specified in Section 2.06(e).
“Independent Securities Dealer” shall have the meaning specified in Section 8.01(b).
“Initial Purchasers” means X.X. Xxxxxx Securities, Inc., Xxxxxx Xxxxxxx & Co. Incorporated and
UBS Securities LLC.
“interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes , including Additional Interest, if any, payable under the terms of the Registration
Rights Agreement.
“Interest Payment Date” means April 1 and October 1 of each year, beginning on October 1,
2007.
“Last Reported Sale Price” means, with respect to the shares of Common Stock or any other
security for which a Last Reported Sale Price must be determined, on any date, the closing sale
price per share of the Common Stock or unit of such other security (or, if no closing sale price is
reported, the average of the last bid and last ask prices or, if more than one in either case, the
average of the average last bid and the average last ask prices) on such date as reported in
composite transactions for the principal U.S. securities exchange on which the Common Stock or such
other security is traded. If the Common Stock or such other security is not listed for trading on
a United States national or regional securities exchange on the relevant date, the Last Reported
Sale Price shall be the last quoted bid price per share of Common Stock or such other security in
the over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. If the shares of Common Stock or such other security
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are not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the
last bid and ask prices per share of Common Stock or such other security on the relevant date from
each of at least three nationally recognized independent investment banking firms selected from
time to time by the Board of Trustees for that purpose. The Last Reported Sale Price shall be
determined without reference to extended or after-hours trading.
“
Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (
New York City time) on such day.
“Maturity Date” means April 1, 2037.
“Measurement Period” shall have the meaning specified in Section 8.01(b).
“Merger Event” shall have the meaning specified in Section 8.06.
“Noteholder” or “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), means any person in whose name at the time a particular
Note is registered on the Security Register.
“Notice of Exchange” shall have the meaning specified in Section 8.02(c).
“Observation Period” means the 20 consecutive Trading Day period beginning on and including
the second Trading Day after the related Exchange Date in respect of such Note.
“
opening of business” means 9:00 a.m. (
New York City time).
“
Parent” means
Prologis, Inc., a Maryland corporation, and subject to the provisions of
Article VII, shall include its successors and assigns.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306 of the Base Indenture in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
“Purchase Agreement” means that certain Purchase Agreement relating to the Notes, dated March
20, 2007, between the Company and the Initial Purchasers.
“Put Right Repurchase Date” shall have the meaning assigned to it in Section 9.01(b).
“Put Right Repurchase Notice” shall have the meaning assigned to it in Section 9.01(b)(i).
“Put Right Repurchase Price” shall have the meaning assigned to it in Section 9.01(b).
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“Record Date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.
“Reference Property” shall have the meaning specified in Section 8.06(b).
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of
March 26, 2007, between the Company, and the Initial Purchasers, as amended from time to time in
accordance with its terms.
“Restricted Securities” shall have the meaning specified in Section 2.06(b).
“Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended from
time to time hereafter.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Settlement Amount” shall have the meaning specified in Section 8.02(a)(1).
“Spin-Off” shall have the meaning specified in Section 8.04(c).
“Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Exchange Rate as set forth in
Section 8.01(e)(ii) hereof, which shall be equal to (i) if holders of shares of Common Stock
receive only cash in such Fundamental Change, the cash amount paid per share of Common Stock and
(ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the
five consecutive Trading Day period ending on the Trading Day preceding the Effective Date of the
Fundamental Change.
“Trading Day” means a day during which (i) trading in Common Stock generally occurs, (ii)
there is no Market Disruption Event and (iii) a Last Reported Sale Price of the Common Stock (other
than a Last Reported Sale Price referred to in the next to last sentence of such definition) is
available for such day; provided that if the shares of Common Stock are not admitted for trading or
quotation on or by any exchange, bureau or other organization referred to in the definition of Last
Reported Sale Price (excluding the next to last sentence of that definition), Trading Day shall
mean any Business Day.
“
Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Company and delivered to the Trustee for $2.0
million principal amount of Notes 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, 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, that one bid shall be used. If the Company cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the Exchange Rate.
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“Trigger Event” shall have the meaning specified in Section 8.04(c).
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “2.25% Convertible
Senior Notes due 2037.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Annex A of the Twelfth Supplemental Indenture is initially limited to
$1,250,000,000, subject to Section 2.07 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section
2.06, Section 8.02 and Section 9.02 hereof and Section 306 and Section 906 of to the Base
Indenture.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the form set forth in Exhibit A.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Annex A of the Twelfth Supplemental Indenture, or as may be required by the Depositary or
by National Association of Securities Dealers, Inc. in order for the Notes to be tradable on The
PORTAL Market or as may be required for the Notes to be tradable on any other market developed for
trading of securities pursuant to Rule 144A or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance,
or to conform to usage or to indicate any special limitations or restrictions to which any
particular Notes are subject.
A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this
Annex A of the Twelfth Supplemental Indenture. Payment of principal and accrued and unpaid
interest on a Global Note shall be made to the Holder of such Note on the date of payment, unless a
Record Date or other means of determining Holders eligible to receive payment is provided for
herein.
The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Annex A of
the Twelfth Supplemental Indenture and to the extent applicable, the Company and the
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Trustee, by their execution and delivery of this Annex A of the Twelfth Supplemental
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of
New York or the City of Boston, which shall initially be an office or agency of
the Trustee. The Company shall pay interest (i) on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Security Register (or upon
written application by such Person to the Security Registrar not later than the relevant record
date, by wire transfer in immediately available funds to such Person’s account within the United
States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000)
or (ii) on any Global Note by wire transfer of immediately available funds to the account of the
Depositary or its nominee. The term “Record Date” with respect to any Interest Payment Date shall
mean the March 15 or September 15 preceding the applicable April 1 or October 1 Interest Payment
Date, respectively.
Section 2.04 Intentionally Omitted.
Section 2.05 Execution, Authentication and Delivery of Notes. Section 303 of the Base
Indenture shall be applicable to the Notes.
Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.
(a) The Company shall provide for the registration of the Notes and of transfers of the Notes
in the Security Register. Upon surrender for registration of transfer of any Note to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such restrictive legends as may
be required by this Annex A of the Twelfth Supplemental Indenture.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
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deliver, the Notes which the Noteholder making the exchange is entitled to receive, bearing
registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.
No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required
to exchange or register a transfer of (a) any Notes surrendered for exchange or, if a portion of
any Note is surrendered for exchange, such portion thereof surrendered for exchange or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article IX hereof.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Annex A of the Twelfth Supplemental Indenture shall be the valid, binding and legal
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Annex A of the Twelfth Supplemental Indenture as the Notes surrendered upon such registration of
transfer or exchange.
(b) Every Note (and all Notes issued in exchange therefor or in substitution thereof) that
bears or is required under this Section 2.06(b) to bear the legend set forth in this Section
2.06(b) (together with any Common Stock issued upon exchange of the Notes, collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section
2.06(b) (including those set forth in the legend below) unless such restrictions on transfer shall
be waived by written consent of the Company, and the Holder of each such Restricted Security, by
such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used
in this Section 2.06(b), the term “transfer” means any sale, pledge, loan, transfer or other
disposition whatsoever of any Restricted Security or any interest therein.
Until the expiration of the holding period applicable to sales of Restricted Securities under
Rule 144(k) under the Securities Act (or any successor provision), any certificate evidencing a
Restricted Security shall bear a legend in substantially the following form, unless such Restricted
Security has been sold pursuant to a registration statement that has been declared, or otherwise
has become, effective under the Securities Act (and which continues to be effective at the time of
such transfer) or sold pursuant to Rule 144 under the Securities Act or any similar provision then
in force, or unless otherwise agreed by the Company in writing, with written notice thereof to the
Trustee:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR THE COMMON SHARES
ISSUABLE UPON CONVERSION OF SUCH SECURITY, PRIOR TO THE DATE WHICH
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL DATE OF ISSUANCE OF
THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE “RESALE RESTRICTION TERMINATION
DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
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Any Notes that are Restricted Securities and as to which such restrictions on transfer shall
have expired in accordance with their terms or as to conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of such Note for exchange to the
Securities Registrar in accordance with the provisions of this Section 2.06, be exchanged for a new
Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.06(b). If such Restricted Security surrendered for exchange is
represented by a Global Note bearing the legend set forth in this Section 2.06(b), the principal
amount of the legended Global Note shall be reduced by the appropriate principal amount and the
principal amount of a Global Note without the legend set forth in this Section 2.06(b) shall be
increased by an equal principal amount. If a Global Note without the legend set forth in this
Section 2.06(b) is not then outstanding, the Company shall execute and the Trustee shall
authenticate and deliver an unlegended Global Note to the Depositary.
In the event Rule 144(k) under the Securities Act (or any successor provision) is amended to
shorten the two-year period under Rule 144(k), then, the references in the restrictive legends set
forth above to “TWO YEARS,” and in the corresponding transfer restrictions described above, and in
the Notes and the Common Stock issued upon exchange of the Notes will be deemed to refer to such
shorter period, from and after receipt by the Trustee of an Officers’ Certificate and an Opinion of
Counsel to that effect. As soon as reasonably practicable after the Company knows of the
effectiveness of any such amendment to shorten the two-year period under Rule 144(d), unless such
changes would otherwise be prohibited by, or would cause a violation of, the federal securities
laws applicable at the time, the Company will provide to the Trustee an Officers’ Certificate and
an Opinion of Counsel as to the effectiveness of such amendment and the effectiveness of such
change to the restrictive legends and transfer restrictions.
(c) Any Restricted Securities, prior to the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor provision), purchased or
owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate
and will be surrendered to the Trustee for cancellation. Upon expiration of the holding period
applicable to sales of Restricted Securities under Rule 144(k) under the Securities Act (or any
successor provision), the Notes may, to the extent permitted by applicable law, be reissued or sold
or may be surrendered to the Trustee for cancellation. Any Notes surrendered for cancellation may
not be reissued or resold and will be canceled promptly by the Trustee.
(d) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or under applicable law
with respect to any transfer of any interest in any Note 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 instrument, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note,
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which does not involve the issuance of a definitive Note, shall be effected through the
Depositary (but not the Trustee or the Custodian) in accordance with this Annex A of the Twelfth
Supplemental Indenture (including the restrictions on transfer set forth herein) and the procedures
of the Depositary therefor.
Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms
and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate
principal amount, which will form the same series with the Notes initially issued hereunder,
provided that no such additional Notes may be issued unless fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes. The Company may also from time to time
repurchase the Notes in open market purchases by tender at any price or by private agreement
without prior notice to Noteholders.
Section 2.08 No Sinking Fund. The provisions of Article Twelve of the Base Indenture shall
not be applicable to the Notes. No sinking fund is provided for the Notes.
Section 2.09 Ranking. The Notes constitute a senior general obligation of the Company,
ranking equally with other existing and future senior and unsubordinated indebtedness of the
Company and ranking senior in right of payment to any future indebtedness of the Company that is
expressly made subordinate to the Notes by the terms of such indebtedness.
ARTICLE III
REDEMPTION
Section 3.01 Right to Redeem.
(a) Notwithstanding any provision of the Base Indenture, as modified by this Annex A of the
Twelfth Supplemental Indenture, to the contrary, the Company may redeem the Notes prior to April
1, 2037, in whole, in order to preserve Parent’s status as a real estate investment trust under the
Code.
(b) Except as provided in Section 3.01(a), the Company may not redeem the Notes prior to April
5, 2012. On or after April 5, 2012, the Company, at its option, may redeem the Notes from time to
time in whole or in part.
(c) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest; provided, however, that the
Company may deduct and withhold from such Redemption Price any amount required to be deducted and
withheld under applicable law.
Section 3.02 Selection of Notes to be Redeemed.
(a) The provisions of Section 1103 of the Base Indenture shall govern the selection of Notes
to be redeemed by the Trustee provided, however, that if less than all of the Notes are to be
redeemed, the Trustee shall make the selection from the Notes of that series
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Outstanding and not previously called for redemption, by lot, or in its discretion, on a pro
rata basis.
(b) If any Note selected for partial redemption is exchanged in part before termination of the
exchange right with respect to the portion of the Note so selected, the exchanged portion of such
Note shall be deemed to be part of the portion selected for redemption. Notes which have been
exchanged subsequent to the Trustee commencing selection of Notes to be redeemed but prior to
redemption of such Notes shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 3.03 Notice of Redemption. The provisions of Section 1104 of the Base Indenture shall
govern notices of redemption of the Notes; provided, however, that in addition to the information
specified in Section 1104 of the Base Indenture, notices of redemption of the Notes shall also
state:
(a) the then-current Exchange Price;
(b) the name and address of the Exchange Agent;
(c) that Holders who wish to exchange Notes must surrender such Notes for exchange no later
than the close of business on the second Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth herein; and
(d) whether the Company will satisfy its Exchange Obligation with respect to any Notes called
for redemption that are surrendered for exchange in cash, shares of Common Stock or both as
provided herein; provided that the Company may not provide notice of a redemption of Notes at the
Company’s option that specifies that the Company will settle exchanges of Notes prior to such
redemption in cash and shares of Common Stock unless, at the time of such notice, the Company has
available to it a sufficient number of authorized shares of Common Stock to satisfy its Exchange
Obligation in respect of the Notes to be redeemed.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest.
(a) Sections 307 and 1001 of the Base Indenture shall apply to the Notes; provided, however,
that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at
the application of such Holder in writing to the Security Registrar not later than the relevant
record date, accrued and unpaid interest on such Holder’s Notes shall be paid by wire transfer in
immediately available funds to such Holder’s account in the United States supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from Trustee); provided further
that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time to time.
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(b) Except as otherwise provided in this Section 4.01(b), a Holder of any Notes at the close
of business on a Record Date shall be entitled to receive interest on such Notes on the
corresponding Interest Payment Date. A Holder of any Notes as of a Record Date that are exchanged
after the close of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall be entitled to receive interest on the principal amount
of such Notes, notwithstanding the exchange of such Notes prior to such Interest Payment Date.
However, a Holder that surrenders any Notes for exchange between the close of business on a Record
Date and the opening of business on the corresponding Interest Payment Date shall be required to
pay the Company an amount equal to the interest payable by the Company with respect to such Notes
on such Interest Payment Date at the time such Holder surrenders such Notes for exchange, provided,
however, that this sentence shall not apply to a Holder that exchanges Notes:
a. in respect of which the Company has given notice of redemption pursuant to Section
3.03 on a Redemption Date that is after the relevant Record Date and on or prior to the
relevant Interest Payment Date; or
b. to the extent of any overdue interest, if any overdue interest exists at the time of
exchange with respect to such Notes;
c. in connection with a Fundamental Change in which the Company has specified a
Fundamental Change Repurchase Date that is after a Record Date and on or prior to the next
Interest Payment Date; or
d. after the Record Date immediately preceding the Maturity Date.
Accordingly, a Holder that exchanges Notes under any of the circumstances described in clauses (i),
(ii), (iii) or (iv) above will not be required to pay to the Company an amount equal to the
interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.
Section 4.02 Maintenance of Office or Agency for Exchange Agent. If at any time the Exchange
Agent is not the Trustee or an office or agency designated or appointed by the Trustee, the Company
will give prompt written notice to the Trustee of the location of such Exchange Agent. If at any
time the Company shall fail to maintain an office or agency for the Exchange Agent, presentations,
surrenders, notices and demands related to exchanges of Notes may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan initially
located at 100 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Division.
Section 4.03 Rule 144A Information Requirement. Within the period prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall, during any period in which it
is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or
beneficial holder of Notes or any Common Stock issued upon exchange thereof which continue to be
Restricted Securities in connection with any sale thereof and any prospective purchaser of Notes or
such Common Stock designated by such Holder or beneficial
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holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the
request of any Holder or beneficial holder of the Notes or such Common Stock, all to the extent
required to enable such Holder or beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption provided by Rule 144A
unless a resale shelf registration statement in respect of the Notes and the Common Stock is
available.
Section 4.04 Additional Interest Notice. In the event that the Issuer is required to pay
Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Company
will provide written notice (“Additional Interest Notice”) to the Trustee of its obligation to pay
Additional Interest no later than fifteen (15) calendar days prior to the proposed payment date for
Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional
Interest to be paid by the Company on such payment date. The Trustee shall not at any time be
under any duty or responsibility to any Holder of Notes to determine whether the Company is
required to pay Additional Interest, the Additional Interest, or with respect to the nature, extent
or calculation of the amount of Additional Interest when made, or with respect to the method
employed in such calculation of the Additional Interest.
Section 4.05 Exclusion of Certain Provisions From Base Indenture. Section 1004, Section 1006,
Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002,
Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second
Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture
shall be applicable to the Notes.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default. The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to the events described in clauses
(1), (4), (5) (as amended by the Second Supplemental Indenture to the Base Indenture), (6) (as
amended by the Second Supplemental Indenture to the Base Indenture), (7) and (8) of the Base
Indenture, shall be Events of Default with respect to the Notes:
(a) default in the payment of principal or premium, if any, of any Note when due and payable
on the Maturity Date, upon redemption, repurchase, declaration or otherwise;
(b) failure by the Company to comply with its obligation to exchange the Notes into cash,
shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, upon
exercise of a Holder’s exchange right, and such failure continues for a period of ten days; or
(c) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.02 when due, and such failure continues for a period of two days.
Section 5.02 Article Five of Base Indenture. Except as amended by Section 5.01 hereof, all of
the provisions of Article Five of the Base Indenture shall be applicable to the Notes.
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ARTICLE VI
SUPPLEMENTAL INDENTURES
Section 6.01 Supplemental Indentures Without Consent of Noteholders. The provisions of
Section 901 of the Base Indenture shall be applicable to the Notes.
Section 6.02 Modification and Amendment with Consent of Noteholders. Section 902 of the Base
Indenture shall be applicable to the Notes. As contemplated by Sections 301 and 902 of the Base
Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding
Note affected thereby:
(a) make any change that adversely affects the exchange rights of any Notes;
(b) reduce the Fundamental Change Repurchase Price, Redemption Price or Put Right Repurchase
Price of any Note, or amend or modify in any manner adverse to Noteholders the Company’s obligation
to make such payments or Article III or Article IX of this Annex A of the Twelfth Supplemental
Indenture, whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise.
Section 6.03 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, the Base Indenture and this Annex A of the Twelfth Supplemental
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a
part of this Annex A of the Twelfth Supplemental Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
Section 6.04 Article Nine of Base Indenture. Except as amended by this Article VI, all of the
provisions of Article Nine of the Base Indenture shall be applicable to the Notes.
ARTICLE VII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base
Indenture shall be applicable to the Notes.
ARTICLE VIII
EXCHANGE OF NOTES
Section 8.01 Exchange Privilege.
(a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11
hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have
the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged
is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the
close of business on the scheduled Trading Day immediately preceding
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February 1, 2012 at a rate (the “Exchange Rate”) of 5.8752 shares of Common Stock (subject to
adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the
“Exchange Obligation”) under the circumstances and during the periods set forth below. On and
after February 1, 2012, regardless of the conditions described in clause (b) through (f) below,
upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a
Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the
portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at
any time prior to the close of business on the scheduled Trading Day immediately preceding the
Maturity Date at an Exchange Rate of 5.8752 shares of Common Stock (subject to adjustment by the
Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(b) (1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes
prior to February 1, 2012, during the five Business Day period immediately after any ten
consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Notes for each day of such Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such
date, all as determined by the Trustee in the manner described in the immediately succeeding
paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless
requested by the Company to do so in writing, and the Company shall have no obligation to make such
request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of
Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such
time and the then-applicable Exchange Rate, at which time the Company shall select three
independent nationally recognized securities dealers (each, an “Independent Securities Dealer”),
request that the Independent Securities Dealers provide a secondary market quotation for the Notes
and provide such determination to the Company and the Trustee in writing, and the Company shall
instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price
condition set forth above has been met, the Company shall so notify the Noteholders. If at any
time after the Trading Price condition set forth above has been met, the Trading Price per $1,000
principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on
such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price
and whether the Trading Price condition set forth in the first sentence of the immediately
preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting
forth, for each day of determination (as identified in such Certificate), the name of the
Independent Securities Dealers providing the secondary market bid quotations, a statement
certifying that that such dealers are “Independent Securities Dealers” as required in this
Section 8.01, the secondary market bid quotations obtained from such Independent Securities
Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s
calculation of the Trading Price for such date. The Trustee shall be entitled to
conclusively rely, without independent verification, on the quotations provided by the
Company in making its determinations hereunder. On the
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basis of such quotations, the Trustee shall determine the Trading Price of the Notes,
and provide such determination to the Company. Absent manifest error, the Trustee’s
determination of the Trading Price will be binding on the Company. Unless and until a
Responsible Officer of the Trustee shall have received a request from the Company for
determination of the Trading Price for the Notes and the Officers’ Certificate contemplated
herein, the Trustee shall have no obligation to make any determination of the Trading Price
of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during
any calendar quarter after the quarter ended March 31, 2007, and only during such calendar quarter,
if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period
of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter
exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which
Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange
Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether
the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the
previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with
Section 1104 of the Base Indenture and Section 3.03 of this Annex A of the Twelfth Supplemental
Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the
close of business on the second Business Day immediately preceding the corresponding Redemption
Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase
Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the
Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex A of
the Twelfth Supplemental Indenture.
(e) (i) In the event that the Company or Parent elects to:
(i) distribute to all or substantially all holders of Common Stock rights entitling
them to purchase, for a period expiring within 60 days, shares of Common Stock at a price
less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately
preceding the declaration date of such distribution; or
(ii) distribute to all or substantially all holders of Common Stock, assets or debt
securities of the Company or Parent or rights to purchase the Company’s or Parent’s
securities, which distribution has a per share value (as determined by the Board of
Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day
immediately preceding the date of declaration of such distribution,
then, in either case, Holders may surrender the Notes for exchange at any time on and after the
date that Parent provides notice to Holders referred to in the next sentence until the earlier of
the close of business on the Business Day immediately preceding the Ex-Dividend Date for such
distribution or the date Parent announces that such distribution will not take place. The Company
shall notify Holders of any distribution referred to in either clause (A) or clause (B)
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above and of the resulting exchange right no later than the 35th Business Day prior to the
Ex-Dividend Date for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a
Fundamental Change, a Holder may surrender Notes for exchange at any time from and
after the 30th scheduled Trading Day prior to the anticipated Effective Date of such
transaction or event until the related Fundamental Change Repurchase Date and, upon
such surrender, the Holder shall be entitled to the increase in the Exchange Rate,
if any, specified in Section 8.01(g). The Company shall give notice to all record
Noteholders and the Trustee and issue a press release of the Fundamental Change no
later than 30 scheduled Trading Days prior to the anticipated Effective Date of the
Fundamental Change.
(iii) If Parent is a party to a consolidation, merger, binding share exchange
or sale or conveyance of all or substantially all of its properties and assets, in
each case pursuant to which the Common Stock would be exchanged into cash,
securities and/or other property, then the Holders shall have the right to exchange
Notes at any time beginning fifteen calendar days prior to the date announced by
Parent as the anticipated effective date of the transaction and until and including
the date that is fifteen calendar days after the date that is the effective date of
such transaction; provided such transaction does not otherwise constitute a
Fundamental Change to which the provisions of Section 8.01(e)(ii) shall apply. The
Company shall give notice to all record Noteholders and the Trustee and issue a
press release at least 20 calendar days prior to the anticipated effective date of
such transaction. If the Board of Directors determines the anticipated effective
date of the transaction, such determination shall be conclusive and binding on the
Holders.
(f) The Notes shall be exchangeable at any time beginning on the first Business Day after any
30 consecutive Trading Day period during which the Common Stock is not listed on a U.S. national
securities exchange.
(g) (i) If a Noteholder elects to exchange Notes in connection with a Fundamental Change that
occurs prior to April 5, 2012, the Exchange Rate applicable to each $1,000 principal amount of
Notes so exchanged shall be increased by an additional number of shares of Common Stock (the
“Additional Shares”) as described below. Settlement of Notes tendered for exchange to which
Additional Shares shall be added to the Exchange Rate as provided in this subsection shall be
settled pursuant to Section 8.02 below, as applicable. For purposes of this Section 8.01(g), an
exchange shall be deemed to be “in connection with” a Fundamental Change to the extent that the
related exchange notice is delivered during the time period beginning on the 30th Trading Day prior
to the anticipated Effective Date of such Fundamental Change and ending on the related Fundamental
Change Repurchase Date, inclusive (regardless of whether the provisions of clauses (b), (c), (d),
(e) or (f) of this Section 8.01 shall apply to such exchange). Such exchange notice shall indicate
that the Holder of Notes has elected to exchange Notes in connection with a Fundamental Change;
provided, however, that the failure to so indicate shall not in any way affect the Exchange
Obligation or the right of such Holder to receive Additional Shares in connection with such
exchange.
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(ii) The number of Additional Shares by which the Exchange Rate will be increased shall
be determined by reference to the table attached as Schedule A hereto, based on the date on
which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the
Stock Price; provided, that if the Stock Price is between two Stock Price amounts in the
table or the Effective Date is between two Effective Dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between the number of
Additional Shares set forth for the next higher and next lower Stock Price amounts and the
two nearest Effective Dates, as applicable, based on a 365-day year; provided further that
if (1) the Stock Price is greater than $380.82 per share of Common Stock (subject to
adjustment in the same manner as set forth in Section 8.04), no Additional Shares will be
added to the Exchange Rate, and (2) the Stock Price is less than $142.97 per share of Common
Stock (subject to adjustment in the same manner as set forth in Section 8.04), no
Additional Shares will be added to the Exchange Rate. Notwithstanding the foregoing, in no
event will the total number of shares of Common Stock issuable upon exchange exceed 7.0410
per $1,000 principal amount of Notes (subject to adjustment in the same manner as set forth
in Section 8.04).
(iii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Exchange Rate of the Notes is adjusted. The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Exchange Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares
within the table shall be adjusted in the same manner as the Exchange Rate as set forth in
Section 8.04 (other than by operation of an adjustment to the Exchange Rate by adding
Additional Shares).
Section 8.02 Exchange Procedures.
(a) (1) The Company shall settle its Exchange Obligations as described in Section 8.02(a)(3),
unless, within the applicable time period specified in this Section 8.02(a)(1), the Company elects
to settle its Exchange Obligations as described in Section 8.02(a)(2) or Section 8.02(a)(4). The
cash and/or shares of Common Stock which the Company is required to deliver in accordance with this
Section 8.02 in settlement of its Exchange Obligations is referred to herein as the “Settlement
Amount.” If the Company desires to settle its Exchange Obligations as described in Section
8.02(a)(2) or Section 8.02(a)(4), the Company shall notify each exchanging Noteholder by notice to
the Trustee (for further distribution to Noteholders) of the method the Company will choose to
satisfy its Exchange Obligations no later than the second Trading Day immediately following the
Company’s receipt of a Notice of Exchange from such Holder, and such notice shall specify the
section of this Annex A of the Twelfth Supplemental Indenture pursuant to which the Company is
electing to satisfy its exchange obligations; provided, however, that the Company shall have the
right to irrevocably elect, in its sole discretion and without the consent of Noteholders, by
notice to the Trustee (for further distribution to Noteholders), on or prior to February 1, 2012,
to settle all of its future Exchange Obligations entirely in shares of Common Stock as described in
Section 8.02(a)(2), and provided further, that the Company is required to settle all exchanges with
an Exchange Date occurring on or after February 1, 2012 in the same manner, and the Company shall
notify Noteholders by
A-20
notice to the Trustee (for further distribution to Noteholders) of the manner of settlement
(including specifying the applicable section of this Annex A of the Twelfth Supplemental Indenture
that describes such manner of settlement) on or before such date. The Company shall treat all
Noteholders exchanging on the same Trading Day in the same manner; however, the Company shall not
have any obligation to settle its Exchange Obligations arising on different Trading Days in the
same manner, except for exchanges with an Exchange Date occurring on or after February 1, 2012,
which shall all be satisfied in the same manner.
(2) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(2), the
Company shall have the right to settle its Exchange Obligations entirely in shares of Common
Stock. If the Company elects to satisfy its Exchange Obligation entirely in shares of
Common Stock, the Company shall deliver a number of shares of Common Stock equal to (i) the
aggregate principal amount of Notes to be exchanged divided by $1,000, multiplied by (ii)
the applicable Exchange Rate (which shall include any increases to reflect any Additional
Shares that such Holder is entitled to receive pursuant to Section 8.01(g) above). The
Company shall deliver such shares of Common Stock as soon as practicable after it has
notified the exchanging Holder pursuant to Section 8.02(a)(1) above, that it has elected to
satisfy its Exchange Obligation entirely in shares of Common Stock.
(3) If the Company does not elect, within the applicable time periods specified in
Section 8.02(a)(1), to settle its Exchange Obligations as described in Section 8.02(a)(2) or
8.02(a)(4), the Company shall settle its Exchange Obligations as described in this Section
8.02(a)(3), subject to Section 8.02(b) hereof. The Company shall deliver in respect of each
$1,000 principal amount of Notes being exchanged a Settlement Amount equal to the sum of the
Daily Settlement Amounts for each of the 20 consecutive Trading Days during the Observation
Period, on the third Trading Day immediately following the last day of the related
Observation Period; provided that the Company will deliver cash in lieu of fractional shares
of Common Stock as set forth pursuant to clause (k) below. The Daily Settlement Amounts
shall be determined by the Company promptly following the last day of the Observation
Period.
(4) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(4), the
Company shall have the right to settle all or a portion of the amount by which the Daily
Exchange Value exceeds $50 in cash in accordance with this Section 8.02(a)(4). In such
case, the Company shall specify a percentage of the amount by which the Daily Exchange Value
exceeds $50 that will be settled in cash, or the “cash percentage.” The Company will inform
exchanging Holders by notice to the Trustee (for further distribution to Noteholders) no
later than two Trading Days prior to the first day of the applicable Observation Period if
it elects to pay cash upon exchange of the Notes and shall specify in such notice (the “cash
percentage notice”) the applicable cash percentage. If the Company elects to specify a cash
percentage, the amount of cash that the Company shall deliver in respect of each Trading Day
in the applicable Observation Period shall equal the product of (w) the cash percentage and
(x) the amount by which the Daily Exchange Value exceeds $50 for such Trading Day. The
number of shares of
A-21
Common Stock deliverable in respect of each Trading Day in the applicable Observation
Period shall equal (i) the product of (y) 100% minus the cash percentage and (z) the amount
by which the Daily Exchange Value exceeds $50 for such Trading Day, divided by (ii) the
Daily VWAP of the Common Stock for such Trading Day. If the Company does not specify a cash
percentage, it must settle the entire amount by which the Daily Exchange Value exceeds $50
with shares of Common Stock pursuant to Section 8.02(a)(3) above; provided, however, that
the Company will deliver cash in lieu of fractional shares of Common Stock as set forth
pursuant to clause (k) below. If the Company specifies a cash percentage, the Company shall
satisfy its Exchange Obligation by delivering, on the third Trading Day immediately
following the last day of the related Observation Period, the amount of cash and the number
of shares of Common Stock deliverable pursuant to this Section 8.02(a)(4).
(b) Notwithstanding Section 8.02(a), the Company shall satisfy the Exchange Obligation with
respect to each $1,000 principal amount of Notes tendered for exchange to which Additional Shares
shall be added to the Exchange Rate as set forth in Section 8.01(g) pursuant to this clause (b).
(i) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is prior to the third Trading Day preceding the Effective Date of the
Fundamental Change, the Company will satisfy the related Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
by delivering the amount of cash and shares of Common Stock, if any (based on the Exchange
Rate, but without regard to the number of Additional Shares to be added to the Exchange Rate
pursuant to Section 8.01(g)) on the third Trading Day immediately following the last day of
the applicable Observation Period. In addition, as soon as practicable following the
Effective Date of the Fundamental Change, the Company will deliver the increase in such
amount of cash and Reference Property deliverable in lieu of shares of Common Stock, if any,
as if the Exchange Rate had been increased by such number of Additional Shares during the
related Observation Period (and based upon the related Daily VWAP prices during such
Observation Period). If such increased amount of cash and Common Stock, if any, results in
an increase to the amount of cash to be paid to Holders, the Company will pay such increase
in cash, and if such increased amount results in an increase to the number of shares of
Common Stock, the Company will deliver such increase by delivering Reference Property based
on such increased number of shares.
(ii) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is on or following the third scheduled Trading Day preceding the Effective Date
of such Fundamental Change, the Company will satisfy the Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
(based on the Exchange Rate as increased by the Additional Shares pursuant to Section
8.01(g) above) on the later to occur of (x) the Effective Date of the Fundamental Change and
(y) the third Trading Day immediately following the last day of the applicable Observation
Period.
A-22
(c) Before any Holder of a Note shall be entitled to exchange the same as set forth above,
such Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and Section
8.02(i) and, if required, pay all taxes or duties, if any, and (2) in the case of a Note issued in
certificated form, (A) complete and manually sign and deliver an irrevocable written notice to the
Exchange Agent in the form on the reverse of such certificated Note (or a facsimile thereof) (a
“Notice of Exchange”) at the office of the Exchange Agent and shall state in writing therein the
principal amount of Notes to be exchanged and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock, if any, to be
delivered upon settlement of the Exchange Obligation to be registered, (B) surrender such Notes,
duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer
documents), at the office of the Exchange Agent, (C) if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in
Section 4.01(b) and Section 8.02(i), and (D) if required, pay all taxes or duties, if any. A Note
shall be deemed to have been exchanged immediately prior to the close of business on the date (the
“Exchange Date”) that the Holder has complied with the requirements set forth in this Section
8.02(c).
No Notice of Exchange with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Put Right Repurchase Notice or a Fundamental Change Repurchase Notice
and not validly withdrawn such Put Right Repurchase Notice or Fundamental Change Repurchase Notice
in accordance with the applicable provisions of Section 9.01 or 9.02, as the case may be.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the
Exchange Obligation with respect to such Notes, if any, that shall be payable upon exchange shall
be computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so surrendered.
(d) Delivery of the amounts owing in satisfaction of the Exchange Obligation shall be made by
the Company in no event later than the date specified in Section 8.02(a), except to the extent
specified in Section 8.02(b). The Company shall make such delivery by paying the cash amount owed
to the Exchange Agent or to the Holder of the Note surrendered for exchange, or such Holder’s
nominee or nominees, and by issuing, or causing to be issued, and delivering to the Exchange Agent
or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer
through the Depositary for the number of full shares of Common Stock to which such Holder shall be
entitled as part of such Exchange Obligation (together with any cash in lieu of fractional shares).
(e) In case any Note shall be surrendered for partial exchange, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unexchanged portion of the surrendered Notes.
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(f) If a Holder submits a Note for exchange, the Company shall pay all stamp and other duties,
if any, which may be imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon
the exchange. However, the Holder shall pay any such tax that is due because the Holder requests
any shares of Common Stock to be issued in a name other than the Holder’s name. The Exchange Agent
may refuse to deliver the certificates representing the shares of Common Stock being issued in a
name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the Holder’s name. Nothing
herein shall preclude any tax withholding required by law or regulations.
(g) Except as provided in Section 8.04, no adjustment shall be made for dividends on any
shares issued upon the exchange of any Note as provided in this Article.
(h) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
exchange of Notes effected through any Exchange Agent other than the Trustee.
(i) Upon exchange, a Noteholder will not receive any separate cash payment for accrued and
unpaid interest, except as set forth below. The Company’s settlement of its Exchange Obligation as
described above shall be deemed to satisfy its obligation to pay the principal amount of the Note
and accrued and unpaid interest to, but not including, the Exchange Date. As a result, accrued and
unpaid interest to, but not including, the Exchange Date shall be deemed to be paid in full rather
than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Notes are
exchanged after the close of business on a Record Date, Holders of such Notes as of the close of
business on the Record Date will receive the interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange during the
period from the close of business on any regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on the Notes so exchanged; provided, however, that no such payment need be made
(1) if the Company has called the Notes for redemption or (2) to the extent of any overdue interest
existing at the time of exchange with respect to such Note, (3) to Notes surrendered for exchange
in connection with a Fundamental Change in which the Company has specified a Fundamental Change
Repurchase Date that is after a Record Date and on or prior to the next Interest Payment Date, or
(4) to Notes surrendered for exchange after the Record Date immediately preceding the Maturity
Date. Except as described above, no payment or adjustment will be made for accrued interest on
exchanged Notes.
(j) The Person in whose name the certificate for any shares of Common Stock issued upon
exchange is registered shall be treated as a stockholder of record on and after the Exchange Date;
provided, however, that no surrender of Notes on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons entitled to receive
the shares of Common Stock upon such exchange as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record
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holder or holders thereof for all purposes at the close of business on the next succeeding day
on which such stock transfer books are open; such exchange shall be at the Exchange Rate in effect
on the date that such Notes shall have been surrendered for exchange, as if the stock transfer
books of the Company had not been closed. Upon exchange of Notes, such Person shall no longer be a
Noteholder.
(k) No fractional shares of Common Stock shall be issued upon exchange of any Note or Notes.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the number
of full shares that shall be issued upon exchange thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock that would otherwise be issued upon exchange of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction
of the Last Reported Sale Price of the Common Stock on the last day of the applicable Observation
Period.
(l) Reserved.
Section 8.03 Reserved.
Section 8.04 Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to
time by the Company as follows:
(a) In case Parent shall issue Common Stock as a dividend or distribution to holders of the
outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common
Stock or combination into a lesser number of shares of Common Stock, the Exchange Rate shall be
adjusted based on the following formula:
where
ER0 = the Exchange Rate in effect immediately prior to such event;
ER' = the Exchange Rate in effect immediately after such event;
OS0 = the number of shares of Common Stock outstanding immediately prior to such event;
and
OS' = the number of shares of Common Stock outstanding immediately after such event.
Such adjustment shall become effective immediately after 9:00 a.m.,
New York City time, on the
Business Day following the record date fixed for such determination. If any dividend or
distribution of the type described in this Section 8.04(a) is declared but not so paid or made, or
the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the
Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or subdivide or combine the
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outstanding shares of Common Stock, as the case may be, to the Exchange Rate that would then be in
effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common
Stock any rights, warrants or convertible securities entitling them (for a period expiring within
sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common
Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the
Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate
shall be adjusted based on the following formula:
|
|
|
where |
|
|
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to such event; |
|
|
|
ER' =
|
|
the Exchange Rate in effect immediately after such event; |
|
|
|
OS0 =
|
|
the number of shares of Common Stock outstanding immediately prior to such event; |
|
|
|
X =
|
|
the total number of shares of Common Stock issuable pursuant to such rights, warrants or convertible
securities; and |
|
|
|
Y =
|
|
the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants or
convertible securities divided by the average of the Last Reported Sale Prices per share of Common Stock over
the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date (or,
if later, the Ex-Date relating to such distribution) for the issuance of such rights, warrants or convertible
securities. |
Such adjustment shall be successively made whenever any such rights, warrants or convertible
securities are issued and shall become effective immediately after 9:00 a.m.,
New York City time,
on the Business Day following the date fixed for such determination. If such rights, warrants or
convertible securities are not so exercised prior to their expiration, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such record date for such
distribution had not been fixed.
In determining whether any rights, warrants or convertible securities entitle the holder
thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Last
Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of
announcement of such issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by Parent for such
rights, warrants or convertible securities and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of
Trustees.
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(c) In case Parent shall distribute to all or substantially all holders of its Common Stock
shares of Capital Stock, evidences of its indebtedness or other assets or property of Parent
(including securities, but excluding dividends and distributions covered by Section 8.04(a),
Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with
respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or
property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such
case the Exchange Rate shall be adjusted based on the following formula:
|
|
|
where |
|
|
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect immediately after such distribution; |
|
|
|
SP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period
ending on the Business Day immediately preceding the record date for such distribution (or, if earlier, the
Ex-Date relating to such distribution); and |
|
|
|
FMV =
|
|
the fair market value (as determined by the Board of Trustees) of the Distributed Property distributed with
respect to each outstanding share of Common Stock on the record date for such distribution (or, if earlier,
the Ex-Date relating to such distribution). |
Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the
Business Day following the date fixed for the determination of stockholders entitled to receive
such distribution; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one share of Common Stock is equal to or
greater than SP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Noteholder shall have the right to receive, for each $1,000 principal amount
of Notes upon exchange, the amount of Distributed Property such Holder would have received had such
Holder owned a number of shares of Common Stock equal to the Exchange Rate on the record date. If
such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to
be the Exchange Rate that would then be in effect if such dividend or distribution had not been
declared. If the Board of Trustees determines the fair market value of any distribution for
purposes of this Section 8.04(c) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the same period used in
determining SP0 above.
With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of Capital Stock, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), unless the
Company distributes such shares of Capital Stock or equity interests to each Noteholder on the same
basis as such Noteholder would have received had it exchanged its Notes solely into shares of
Common Stock immediately prior to such dividend or distribution, the Exchange Rate
A-27
in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for
determination of stockholders entitled to receive the distribution will be increased based on the
following formula:
|
|
|
where |
|
|
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect immediately after such distribution; |
|
|
|
FMV0 =
|
|
the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to
holders of shares of Common Stock applicable to one share of Common Stock over the first ten consecutive
Trading Day period after the effective date of the Spin-Off; and |
|
|
|
MP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day
period after the effective date of the Spin-Off. |
Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any exchange within the ten Trading Days following any
Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between such Spin-Off and the Exchange Date in
determining the applicable Exchange Rate.
Rights or warrants distributed by Parent to all holders of Common Stock, entitling the holders
thereof to subscribe for or purchase shares of Common Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified event or events
(“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable and (iii) are also issued in respect of future issuances of shares of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 8.04 (and no adjustment
to the Exchange Rate under this Section 8.04 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section
8.04(c). If any such right or warrant, including any such existing rights or warrants distributed
prior to the date of this Annex A of the Twelfth Supplemental Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the occurrence of any and
each such event shall be deemed to be the date of distribution and record date with respect to new
rights or warrants with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under
this Section 8.04 was made, (1) in the case of any such rights or warrants that shall all have been
redeemed or repurchased without exercise by any
A-28
holders thereof, the Exchange Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or
been terminated without exercise by any holders thereof, the Exchange Rate shall be readjusted as
if such rights and warrants had not been issued.
For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or
distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock
to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of
Common Stock to which Section 8.04(a) or Section 8.04(b) applies (or both), shall be deemed instead
to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital
Stock other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies
(and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Exchange Rate adjustment
required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall
then be made), except (A) the record date of such dividend or distribution shall be substituted as
“the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a)
and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to such event” within the meaning of Section
8.04(a).
(d) In case Parent shall pay a dividend or make a distribution consisting exclusively of cash
to all or substantially all holders of its Common Stock to the extent that the aggregate of all
such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount for
such quarter, the Exchange Rate shall be adjusted based on the following formula:
|
|
|
where |
|
|
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to the record date for such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect immediately after the record date for such distribution; |
|
|
|
SP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the period of ten consecutive Trading
Days ending the Business Day immediately preceding the record date (as defined in clause (f) of this Section)
for such distribution (or, if earlier, the Ex-Date relating to such distribution); |
|
|
|
T =
|
|
the dividend threshold amount (“Dividend Threshold Amount”), which amount shall initially be $1.0305 per
quarter and which shall be appropriately adjusted from time to |
A-29
|
|
|
|
|
time for any stock dividends on, or subdivisions or combinations of, Common Stock; provided, that if an
Exchange Rate adjustment is required to be made as a result of a distribution that is not a quarterly
dividend either in whole or in part, the Dividend Threshold Amount shall be deemed to be zero; and |
|
|
|
C =
|
|
the amount in cash per share that Parent distributes to holders of Common Stock. |
Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the
record date for such dividend or distribution; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than SP0 above, in lieu
of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon exchange of a Note (or any portion thereof) the amount of cash such
Holder would have received had such Holder owned a number of shares equal to the Exchange Rate on
the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared.
For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become exchangeable into more
than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this
Section 8.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
exchangeable equal to the number of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.
(e) In case Parent or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for all or any portion of the shares of Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of Common Stock exceeds the
Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), the Exchange Rate shall be increased based on the following formula:
|
|
|
where |
|
|
|
|
|
ER0 =
|
|
the Exchange Rate in effect on the date such tender or exchange offer expires; |
|
|
|
ER' =
|
|
the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires; |
|
|
|
AC =
|
|
the aggregate value of all cash and any other consideration (as determined by the Board of Trustees) paid or
payable for shares purchased in such tender or exchange offer; |
A-30
|
|
|
OS0 =
|
|
the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer
expires; |
|
|
|
OS' =
|
|
the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer
expires; and |
|
|
|
SP' =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period
commencing on the Trading Day next succeeding the date such tender or exchange offer expires, |
such adjustment to become effective immediately prior to the opening of business on the day
following the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer. If Parent is obligated to purchase shares pursuant to any such tender or exchange
offer, but Parent is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Exchange Rate shall again be
adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had
not been made or had only been made in respect of the purchases that had been effected. No
adjustment to the Exchange Rate will be made if the application of the foregoing formulae would
result in a decrease in the Exchange Rate.
(f) For purposes of this Section 8.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the shares of Common Stock (or
other applicable securities) are 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) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section 8.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York
Stock Exchange, the Company from time to time may increase the Exchange Rate by any amount for a
period of at least 20 days if the Board of Trustees determines that such increase would be in the
Company’s best interest. In addition, the Company may also (but is not required to) increase the
Exchange Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase
shares of Common Stock in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event. Whenever the Exchange Rate is increased pursuant to the preceding
sentence, the Company shall mail to the Holder of each Note at his last address appearing on the
Security Register a notice of the increase at least five days prior to the date the increased
Exchange Rate takes effect, and such notice shall state the increased Exchange Rate and the period
during which it will be in effect.
(h) All calculations and other determinations under this Article VIII shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share of stock, as the case may be. No adjustment shall be made for Parent’s issuance of shares of
Common Stock or any securities convertible into or exchangeable for shares of Common Stock, or the
right to purchase shares of Common Stock or such convertible or exchangeable securities, other than
as provided in this Section 8.04. No adjustment shall be
A-31
made to the Exchange Rate unless such adjustment would require a change of at least 1% in the
Exchange Rate then in effect at such time. The Company shall carry forward any adjustments that
are less than 1% of the Exchange Rate and make such carried forward adjustments, regardless of
whether the aggregate adjustment is less than 1% within one year of the first such adjustment
carried forward, upon a Fundamental Change, upon any call of the Notes for redemption or upon
maturity.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting
forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. The Trustee and Exchange Agent may conclusively rely on the accuracy of
the Exchange Rate adjustment provided by the Company. Unless and until a Responsible Officer of
the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Exchange Rate setting
forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Exchange Rate to the Holder of each Note at his last
address appearing on the Security Register, within thirty (30) days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.
(j) For purposes of this Section 8.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of Parent but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Section 8.05 Sufficient Shares to be Delivered. To the extent the Company elects to deliver
shares of Common Stock, and subject to Section 8.02(k), the Company shall provide, free from
preemptive rights, sufficient shares of Common Stock to provide for exchange of the Notes from time
to time as such Notes are presented for exchange.
Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely (i) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (ii) any consolidation, merger or
combination of Parent with another Person, or (iii) any sale or conveyance of all or substantially
all of the property and assets of Parent to any other Person, in either case as a result of which
holders of Common Stock shall be entitled to receive cash, securities or other property or assets
with respect to or in exchange for such shares of Common Stock (any such event a “Merger Event”),
then:
(a) the Company, or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which, as evidenced in an Opinion of Counsel delivered to the
Trustee, shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so comply) providing for
the exchange and settlement of the Notes as set forth in this Annex A
A-32
of the Twelfth Supplemental Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change, consolidation,
merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by
such other corporation and shall contain such additional provisions to protect the interests of the
Holders of the Notes as the Board of Trustees shall reasonably consider necessary by reason of the
foregoing, including to the extent required by the Board of Trustees and practicable the provisions
providing for the repurchase rights set forth in Article IX herein.
In the event the Company shall execute a supplemental indenture pursuant to this Section 8.06,
the Company shall, in addition to the Officers’ Certificate and Opinion of Counsel required by
Section 102 of the Base Indenture, file with the Trustee an Officers’ Certificate briefly stating
the kind or amount of cash, securities or property or asset that will constitute the Reference
Property after any such Merger Event, any adjustment to be made with respect thereto, and the
Trustee shall promptly mail notice thereof to all Noteholders.
(b) Notwithstanding the provisions of Section 8.02(a) and Section 8.02(b), and subject to the
provisions of Section 8.01, at the effective time of such Merger Event, the right to exchange each
$1,000 principal amount of Notes will be changed to a right to exchange such Note by reference to
the kind and amount of cash, securities or other property or assets that a holder of a number of
shares of Common Stock equal to the Exchange Rate immediately prior to such transaction would have
owned or been entitled to receive (the “Reference Property”) such that from and after the effective
time of such transaction, a Noteholder will be entitled thereafter to exchange its Notes, subject
to the successor’s right to deliver cash, shares of Common Stock or common stock of such successor
or a combination of cash and shares of Common Stock as set forth in Section 8.02(b), into cash (up
to the aggregate principal amount thereof) and, in lieu of the shares of Common Stock otherwise
deliverable, the same type (and in the same proportion) of Reference Property, based on the Daily
Settlement Amounts of Reference Property in an amount equal to the applicable Exchange Rate, as
described under Section 8.02(b). For purposes of determining the constitution of Reference
Property, the type and amount of consideration that a holder of Common Stock would have been
entitled to in the case of reclassifications, consolidations, mergers, sales or conveyance of
assets or other transactions that cause the Common Stock to be converted into the right to receive
more than a single type of consideration (determined based in part upon any form of stockholder
election) will be deemed to be the weighted average of the types and amounts of consideration
received by the holders of shares of Common Stock that affirmatively make such an election. Parent
shall not become a party to any such transaction unless its terms are consistent with the
preceding. None of the foregoing provisions shall affect the right of a Holder of Notes to
exchange its Notes in accordance with the provisions of Article VIII hereof prior to the effective
date.
(c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Security Register,
A-33
within thirty (30) days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Section 8.07 Certain Covenants. The Company covenants that all shares of Common Stock
delivered upon exchange of Notes will be fully paid and non-assessable by Parent and free from all
taxes, liens and charges with respect to the issue thereof.
Section 8.08 Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at
any time be under any duty or responsibility to any Noteholder to determine the Exchange Rate or
whether any facts exist which may require any adjustment of the Exchange Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Exchange Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any
other Exchange Agent make no representations with respect thereto. Neither the Trustee nor any
Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any
shares of Common Stock or share certificates or other securities or property or cash upon the
surrender of any Note for the purpose of exchange or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Noteholders upon the
exchange of their Notes after any event referred to in such Section 8.06 or to any adjustment to be
made with respect thereto, but, subject to the provisions of Article Six of the Base Indenture, may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate with respect thereto.
Section 8.09 Notice to Holders Prior to Certain Actions.
In case:
(a) Parent shall declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Exchange Rate pursuant to Section 8.04; or
(b) Parent shall authorize the granting to all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other rights or warrants;
(c) of any reclassification of the Common Stock of Parent (other than a subdivision or
combination of its outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to
A-34
which Parent is a party and for which approval of any stockholders of Parent is required, or
of the sale or transfer of all or substantially all of the assets of Parent; or
(d) of the voluntary or involuntary dissolution, liquidation or winding-up of Parent,
the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Security Register as promptly as possible but in any event at least thirty
(30) days prior to the applicable date specified in clause (x) or (y) below, as the case may be, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.
Section 8.10 Stockholder Rights Plans. Upon exchange of the Notes, the Holders shall receive,
in addition to any shares of Common Stock issuable upon such exchange, the associated rights issued
under any future stockholder rights plan Parent adopts unless, prior to exchange, the rights have
separated from the shares of Common Stock, expired, terminated or been redeemed or converted in
accordance with such rights plan. If, and only if, the Holders receive rights under such
stockholder rights plans as described in the preceding sentence upon exchange of their Notes, then
no other adjustment pursuant to this Article VIII shall be made in connection with such stockholder
rights plans.
Section 8.11 Ownership Limit. Notwithstanding any other provision of this Annex A of the
Twelfth Supplemental Indenture or the Notes, no Holder of Notes (or beneficial owner of Notes)
shall be entitled to exchange such Notes for shares of Common Stock to the extent that receipt of
such shares would cause such Holder (or beneficial owner of Notes) (together with such Holder’s (or
beneficial owner’s) affiliates) to exceed the applicable ownership limit contained in the articles
of incorporation of Parent.
ARTICLE IX
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates.
(a) The provisions of Article Thirteen of the Base Indenture shall not be applicable to the
Notes.
(b) Each Noteholder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes or any portion thereof that is a multiple of
A-35
$1,000 principal amount, for cash on April 1, 2012, April 1, 2017, April 1, 2022, April 1,
2027 and April 1, 2032 (each, a “Put Right Repurchase Date”) at a repurchase price per Note equal
to 100% of the aggregate principal amount of the Notes being repurchased, together with any accrued
and unpaid interest up to, but not including, such Put Right Repurchase Date (the “Put Right
Repurchase Price”).
Repurchases of Notes by the Company pursuant to this Section 9.01 shall be made, at the option
of the Holder thereof, upon:
(A) delivery to the Trustee (or other Paying Agent appointed by the Company) by the
Holder of a written notice of purchase (a “Put Right Repurchase Notice”) in the form set
forth on the reverse of the Note at any time from the opening of business on the date that
is 25 Business Days prior to the applicable Put Right Repurchase Date until the close of
business on the fifth Business Day prior to such Put Right Repurchase Date stating:
(A) if certificated, the certificate numbers of the Notes to be delivered for
repurchase;
(B) the portion of the principal amount of the Notes to be repurchased, which
must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased as of the applicable Put Right
Repurchase Date pursuant to the terms and conditions specified in the Notes and in
this Annex A of the Twelfth Supplemental Indenture, and
(B) delivery of such Note to the Paying Agent prior to, on or after the Put Right
Repurchase Date (together with all necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by the Holder of the Put Right Repurchase
Price therefor, which shall be so paid pursuant to this Section 9.01 only if the Note so
delivered to the Paying Agent shall conform in all respects to the description thereof in
the related Put Right Repurchase Notice, as determined by the Company.
The Company shall repurchase from the Holder thereof, pursuant to this Section 9.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Annex A of the Twelfth Supplemental Indenture that apply to the repurchase of
all of a Note also apply to the repurchase of such portion of such Note.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Put Right Repurchase Date and the time of delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Put Right Repurchase Notice or written notice of withdrawal thereof in
accordance with the provisions of Section 9.01(e).
A-36
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(c) In connection with any purchase of Notes pursuant to this Section 9.01, the Company shall
give written notice of the Put Right Repurchase Date to the Holders (the “Company Put Right
Notice”).
The Company Put Right Notice shall be sent by first-class mail to the Trustee and to each
Holder (and to each beneficial owner as required by applicable law) that has delivered a Put Right
Repurchase Notice within ten Business Days of receipt of such Put Right Repurchase Notice, or, if a
shorter period, at least two Business Days prior to any Put Right Repurchase Date (the “Company Put
Right Notice Date”). Each Company Put Right Notice shall include a form of Put Right Repurchase
Notice to be completed by a Noteholder and shall state:
(A) the Put Right Repurchase Price and the Exchange Price;
(B) the name and address of the Paying Agent and the Exchange Agent;
(C) that Notes as to which a Put Right Repurchase Notice has been given may be
exchanged in accordance with Article VIII hereof only if the applicable Put Right Repurchase
Notice has been withdrawn in accordance with the terms of this Annex A of the Twelfth
Supplemental Indenture;
(D) that Notes must be surrendered to the Paying Agent to collect payment;
(E) that the Put Right Repurchase Price for any Note as to which a Put Right Repurchase
Notice has been given and not withdrawn will be paid promptly following the later of the Put
Right Repurchase Date and the time of surrender of such Note as described in subclause (iv)
above;
(F) the procedures the Holder must follow to exercise rights under this Section and a
brief description of those rights;
(G) briefly, the exchange rights of the Notes;
(H) the procedures for withdrawing a Put Right Repurchase Notice (including pursuant to
the terms of Section 9.01(e));
(I) that, unless the Company defaults in making payment on Notes for which a Put Right
Repurchase Notice has been submitted, interest on the Notes in respect of which a Put Right
Repurchase Notice has been delivered and not withdrawn will cease to accrue on the Put Right
Repurchase Date; and
A-37
(J) the CUSIP number of the Notes.
If any of the Notes are to be redeemed in the form of a Global Note, the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
redemptions.
At the Company’s request, the Trustee shall give such Company Put Right Notice in the
Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of
such Company Put Right Notice shall be prepared by the Company.
(d) Upon receipt by the Trustee (or other Paying Agent appointed by the Company) of the Put
Right Repurchase Notice specified in Section 9.01(a), the Holder of the Note in respect of which
such Put Right Repurchase Notice was given shall (unless such Put Right Repurchase Notice is
withdrawn as specified in Section 9.01(e)) thereafter be entitled to receive solely the Put Right
Repurchase Price with respect to such Note. Such Put Right Repurchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the
Put Right Repurchase Date with respect to such Note (provided the conditions in Section 9.01(a)
have been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 9.01(a). Notes in respect of which a Put Right
Repurchase Notice has been given by the Holder thereof may not be exchanged pursuant to Article
VIII hereof on or after the date of the delivery of such Put Right Repurchase Notice, unless such
Put Right Repurchase Notice has first been validly withdrawn as specified in Section 9.01(e).
(e) A Put Right Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Put Right Repurchase Notice at
any time prior to 10:00 A.M. New York City time on the fourth Business Day prior to the Put Right
Repurchase Date specifying:
(A) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes,
(B) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted, and
(C) the principal amount, if any, of such Notes that remains subject to the original
Put Right Repurchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
A written notice of withdrawal of a Put Right Repurchase Notice shall be in the form set forth
in the preceding paragraph.
Upon receipt of a written notice of withdrawal, the Paying Agent shall promptly return to the
Holders thereof any Notes in respect of which a Put Right Repurchase Notice has been withdrawn in
accordance with the provisions of Section 9.01(f).
A-38
(f) There shall be no repurchase of any Notes pursuant to this Section 9.01 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of
the required Put Right Repurchase Notice) and is continuing an Event of Default with respect to
Notes (other than a default in the payment of the Put Right Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Notes held by
it during the continuance of an Event of Default with respect to Notes (other than a default in the
payment of the Put Right Repurchase Price with respect to such Notes), in which case, upon such
return, the Put Right Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
(g) Prior to 11:00 a.m. (local time in The City of New York) on the Put Right Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance
with the terms of the Base Indenture as modified by this Annex A of the Twelfth Supplemental
Indenture) an amount (in immediately available funds if deposited on such Business Day) sufficient
to pay the aggregate Put Right Repurchase Price of all the Notes or portions thereof which are to
be purchased as of the Put Right Repurchase Date. The manner in which the deposit required by this
Section 9.01(g) is made by the Company shall be at the option of the Company; provided that such
deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Put Right Repurchase Date.
If the Trustee (or other Paying Agent appointed by the Company) holds, in accordance with the
terms hereof, money sufficient to pay the Put Right Repurchase Price of any Note, then, on the Put
Right Repurchase Date, such Note will cease to be Outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Put Right Repurchase Price as
aforesaid).
To the extent that the aggregate amount of cash deposited by the Company pursuant to this
Section 9.01(g) exceeds the aggregate Put Right Repurchase Price of the Notes or portions thereof
that the Company is obligated to purchase, then promptly after the Put Right Repurchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the Company.
Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Noteholder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20)
Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).
Repurchases of Notes under this Section 9.02 shall be made, at the option of the Holder
thereof, upon:
A-39
(A) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth on the reverse of the Note prior to the close of business on the Fundamental
Change Repurchase Date; and
(B) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements) at the Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the
City of Boston, such delivery being a condition to receipt by the Holder of the Fundamental
Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price
shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee
(or other Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice.
The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for
repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must
be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Annex A of the Twelfth Supplemental
Indenture.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.02
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 9.02(c).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(b) On or before the twentieth day after the occurrence of any Fundamental Change, the Company
shall provide to all Holders of record of the Notes and the Trustee and
A-40
Paying Agent a notice (the “Fundamental Change Company Notice”) of the occurrence of such
Fundamental Change and of the repurchase right at the option of the Holders arising as a result
thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental
Change Company Notice, the Company shall publish a notice containing the information included
therein once in a newspaper of general circulation in The City of New York or publish such
information on the Company’s website or through such other public medium as the Company may use at
such time.
Each Fundamental Change Company Notice shall specify:
(A) the events causing the Fundamental Change;
(B) the date of the Fundamental Change;
(C) that the Holder must exercise the repurchase right on or prior to the close of
business on the Fundamental Change Repurchase Date;
(D) the Fundamental Change Repurchase Price;
(E) the Fundamental Change Repurchase Date;
(F) the name and address of the Paying Agent and the Exchange Agent;
(G) the applicable Exchange Rate and any adjustments to the applicable Exchange Rate;
(H) that the Notes with respect to which a Fundamental Change Repurchase Notice has
been delivered by a Holder may be exchanged only if the Holder withdraws the Fundamental
Change Repurchase Notice in accordance with the terms of this Annex A of the Twelfth
Supplemental Indenture; and
(I) the procedures that Holders must follow to require the Company to repurchase their
Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Trustee and Paying Agent in accordance with the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, specifying:
(A) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;
(B) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes; and
A-41
(C) the principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000;
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the second Business Day
following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or
other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this
Annex A of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the
Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the
Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made
promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note
(provided the Holder has satisfied the conditions to the payment of the Fundamental Change
Repurchase Price in Section 9.02), and (y) the time of book-entry transfer or the delivery of such
Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the
manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such
Notes entitled thereto as they shall appear in the Security Register, provided, however, that
payments to the Depositary shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon
written demand by the Company, return to the Company any funds in excess of the Fundamental Change
Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities
sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions
thereof that are to be purchased as of the second Business Day following the Fundamental Change
Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease
to be Outstanding, (ii) interest will cease to accrue on such Notes, and (iii) all other rights of
the Holders of such Notes will terminate, whether or not book-entry transfer of the Notes has been
made or the Notes have been delivered to the Trustee or Paying Agent, other than the right to
receive the Fundamental Change Repurchase Price upon delivery of the Notes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Ratification of Base Indenture. Except as expressly modified or amended hereby,
the Base Indenture continues in full force and effect and is in all respects confirmed, ratified
and preserved and the provisions thereof shall be applicable to the Notes and this Annex A of the
Twelfth Supplemental Indenture. Without limiting the generality of the foregoing, the
A-42
Notes shall have the benefit of Article Three of the Second Supplemental Indenture to the Base
Indenture in accordance with its terms.
Section 10.02 Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Annex A of the Twelfth Supplemental
Indenture shall bind its successors and assigns whether so expressed or not.
Section 10.03 Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Annex A of the Twelfth Supplemental Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation or entity
that shall at the time be the lawful sole successor of the Company.
Section 10.04 Addresses for Notices, Etc. Any notice or demand which by any provision of this
Annex A of the Twelfth Supplemental Indenture is required or permitted to be given or served by
the Trustee or by the Noteholders on the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is filed by the Company
with the Trustee) to ProLogis, 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box addressed to U.S. Bank
National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Services/ProLogis.
The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Security Register and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
Section 10.05 Governing Law. THIS ANNEX A TO THE TWELFTH SUPPLEMENTAL INDENTURE AND EACH NOTE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED THEREIN.
Section 10.06 Non-Business Day. Section 113 of the Base Indenture shall also apply to any
Fundamental Change Purchase Date, Put Right Repurchase Date or Exchange Date in respect of the
Notes.
A-43
Section 10.07 Benefits of Indenture. Nothing in this Annex A of the Twelfth Supplemental
Indenture or in the Notes, expressed or implied, shall give to any person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Security Registrar and their successors
hereunder, the Noteholders, any benefit or any legal or equitable right, remedy or claim under this
Annex A of the Twelfth Supplemental Indenture.
Section 10.08 Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Annex A of the Twelfth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.09 Execution in Counterparts. This Annex A of the Twelfth Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 10.10 Trustee. The Trustee makes no representations as to the validity or sufficiency
of this Annex A of the Twelfth Supplemental Indenture. The statements and recitals herein are
deemed to be those of the Company and not of the Trustee.
Section 10.11 Further Instruments and Acts. Upon request of the Trustee, the Company and
Parent 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 Annex A of the
Twelfth Supplemental Indenture.
Section 10.12 Waiver of Jury Trial. EACH OF THE COMPANY PARENT AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.13 Force Majeure. In no event shall the Trustee or Exchange Agent be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
A-44
SCHEDULE A
Share Price
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|
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Effective Date |
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$142.97 |
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$156.81 |
|
$179.21 |
|
$201.61 |
|
$224.01 |
|
$246.42 |
|
$268.82 |
|
$291.22 |
|
$313.62 |
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$336.02 |
|
$358.42 |
|
$380.82 |
April 1, 2011 |
|
|
1.1658 |
|
|
|
0.6611 |
|
|
|
0.2519 |
|
|
|
0.0780 |
|
|
|
0.0171 |
|
|
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0.0027 |
|
|
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0.0012 |
|
|
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0.0011 |
|
|
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0.0001 |
|
|
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0.0000 |
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0.0000 |
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0.0000 |
|
April 1, 2012 |
|
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1.1658 |
|
|
|
0.5482 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
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0.0000 |
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|
0.0000 |
|
|
|
0.0000 |
|
A-Exh A-1
EXHIBIT A
[FORM OF FACE OF NOTE]
[Include only for Global Notes]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Include only for Notes that are Restricted Securities]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR THE COMMON
SHARES ISSUABLE UPON CONVERSION OF SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL DATE OF ISSUANCE OF THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO
A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
A-Exh A-1
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR
U.S. FEDERAL INCOME TAX PURPOSES. HOLDERS OF SECURITIES MAY CONTACT XXXX XXXXXXXX, SENIOR VICE
PRESIDENT, AT (000) 000-0000 TO REQUEST INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF OID,
THE ISSUE DATE AND THE YIELD TO MATURITY OF THE SECURITIES FOR U.S. FEDERAL INCOME TAX PURPOSES.
A-Exh A-2
PROLOGIS
2.25% Convertible Senior Notes due 2037
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No.__________
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$__________ |
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CUSIP Xx. 000000 AP7 |
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PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.], or registered assigns, the principal sum of [_____] ($[_____]) or such other principal amount
as shall be set forth on the Schedule I hereto on April 1, 2037.
This Security shall bear interest at the rate of 2.25% per year from March 26, 2007, or from
the most recent date to which interest had been paid or provided. Interest is payable
semi-annually in arrears on each April 1 and October 1, commencing October 1, 2007, to Holders of
record at the close of business on the preceding March 15 and September 15, respectively. Interest
payable on each Interest Payment Date shall equal the amount of interest accrued from, and
including the immediately preceding Interest Payment Date (or from and including March 26, 2007, if
no interest has been paid hereon) to but excluding such Interest Payment Date.
Payment of the principal and interest and Additional Interest, if any, on this Security will
be made at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, City of New York or the City of Boston, or elsewhere as provided in the Indenture, in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company, payment
of interest and Additional Interest, if any, may be made by (i) check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or (ii) transfer to
an account of the Person entitled thereto located inside the United States; provided further,
however, that, with respect to any Holder of Securities with an aggregate principal amount in
excess of $1,000,000, at the application of such Holder in writing to the Company, interest on such
Holder’s Securities shall be paid by wire transfer in immediately available funds to such Holder’s
account in the United States supplied by such Holder from time to time to the Trustee and Paying
Agent (if different from the Trustee) not later than the applicable record date.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash, Common Shares of the Company or a combination of cash and Common Shares on
the terms and subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.
A-Exh A-3
This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
A-Exh A-4
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the
undersigned officer.
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PROLOGIS
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By: |
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Name: |
[__________] |
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Title: |
[__________] |
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Attest
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By: |
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Name: |
[__________] |
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Title: |
[__________] |
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Dated: [__________], 20[_____]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as successor trustee
A-Exh A-5
[FORM OF REVERSE OF NOTE]
PROLOGIS
2.25% Convertible Senior Notes due 2037
This Security is one of a duly authorized issue of Securities of the Company, designated as
its 2.25% Convertible Senior Notes due 2037 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005 and the Fourth Supplemental
Indenture, dated as of March 26, 2007 (as so supplemented, herein called the “Indenture”), between
the Company and U.S. Bank National Association (herein called the “Trustee”), to which Indenture
and all indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders of the Securities. Additional Securities may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
Prior to April 5, 2012, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Fourth
Supplemental Indenture. Subject to the terms and conditions of the Indenture, on or after April 5,
2012, the Company shall have the right to redeem the Securities, in whole or from time to time in
part, at a price equal to 100% of the principal amount of the Securities being redeemed, plus
accrued and unpaid interest. Any such redemption shall be upon at least 30 days’ and no more than
60 days’ notice to Holders of the Securities.
Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase Price,
the Redemption Price and the principal amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in respect of the
Security. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall make any of the
changes set forth in Section 6.02 of the Fourth Supplemental Indenture, without the consent of each
Holder of an Outstanding Security affected thereby. It is also provided in the Indenture
A-Exh A-6
that, prior to any declaration accelerating the maturity of the Securities, the Holders of a
majority in principal amount of the Securities at the time Outstanding may on behalf of the Holders
of all of the Securities waive any past default or Event of Default under the Indenture and its
consequences except as provided in the Indenture. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Security and any Securities which may be
issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.
The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred to
on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.
The Securities are not subject to redemption through the operation of any sinking fund.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.
On April 1, 2012, April 1, 2017, April 1, 2022, April 1, 2027 and April 1, 2032, the Holder
has the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s
Securities or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) at
a price equal to 100% of the principal amount of the Securities such Holder elects to require the
Company to repurchase, together with accrued and unpaid interest to but excluding the Put Right
Repurchase Date. Holders shall submit their Securities for repurchase to the Paying Agent at any
time from the opening of business on the date that is 25 Business Days prior to the applicable Put
Right Repurchase Date until the close of business on the fifth Business Day prior to the Put Right
Repurchase Date.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, on
and after February 1, 2012, or earlier upon the occurrence of certain conditions specified in the
Indenture and prior to the close of business on the Trading Day immediately preceding the
A-Exh A-7
Maturity Date, to convert any Securities or portion thereof which is $1,000 or an integral
multiple thereof, into cash, Common Shares or a combination of cash and Common Shares, at the
option of the Company as provided in the Fourth Supplemental Indenture, in each case at the
Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture, upon surrender of this Security, together with a Notice of Conversion, a form of which
is attached to this Security, as provided in the Indenture and this Security, to the Company at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of
New York or the City of Boston or elsewhere as provided in the Indenture, and, unless the shares
issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the
Holder or by his duly authorized attorney. The initial Conversion Rate is 13.0576 shares for each
$1,000 principal amount of Securities. No fractional Common Shares will be issued upon any
conversion, but an adjustment in cash will be paid to the Holder, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the surrender of any
Security or Securities for conversion. No adjustment shall be made for dividends or any shares
issued upon conversion of such Security except as provided in the Indenture.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York or the City of Boston, a new Security or
Securities of authorized denominations for an equal aggregate principal amount will be issued to
the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessments or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
A-Exh A-8
Terms used in this Security and defined in the Indenture are used herein as therein defined.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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).
A-Exh A-9
Schedule I
PROLOGIS
2.25% Convertible Senior Notes due 2037
No.__________
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Notation Explaining |
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Principal Amount |
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Authorized Signature of |
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Principal Amount |
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Recorded |
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Trustee or Custodian |
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A-Exh A-10
Schedule I
FORM OF CONVERSION NOTICE
The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into cash, Common Shares, or a combination of cash and shares of Common Shares,
in accordance with the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon such conversion, if any, together with any check in payment of
the cash in respect of the remaining Conversion Obligation (as defined in the Indenture) and for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Security not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Security.
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings
and loan associations and credit unions) with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities to be delivered, other than to and in the name of
the registered holder.
A-Exh A-11
Fill in for registration of shares if to be issued, and Securities if to be delivered, other than
to and in the name of the registered holder:
(Name)
(Street Address)
(City, State and Zip Code)
Please print name and address
Principal amount to be converted (if less than all): $__________,000
Social Security or Other Taxpayer Identification Number
A-Exh A-12
FORM OF PUT RIGHT REPURCHASE NOTICE
The undersigned hereby requests and instructs the Company to repay the entire principal amount
of this Security, or a portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, on April 1, __________ in accordance with the terms of the Indenture
referred to in this Security at the Put Right Repurchase Price, to the registered holder hereof.
Dated:
Signature(s)
Social Security or Other Taxpayer Identification
Number Principal amount to be repaid (if less than
all): $___,000 NOTICE: The above signatures of
the holder(s) hereof must correspond with the name
as written upon the face of the Security in every
particular without alteration or enlargement or any
change whatever.
A-Exh A-13
FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis, to be known as Prologis (the “Company”), as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, in accordance with the terms of the Indenture referred to in
this Security, to the registered holder hereof.
Dated:
Signature(s)
Social Security or Other Taxpayer Identification
Number Principal amount to be repaid (if less than
all): $___,000 NOTICE: The above signatures of
the holder(s) hereof must correspond with the name
as written upon the face of the Security in every
particular without alteration or enlargement or any
change whatever.
A-Exh A-14
FORM OF ASSIGNMENT AND TRANSFER
For value received ____________________ hereby sell(s), assign(s) and transfer(s) unto
____________________ (Please insert social security or Taxpayer Identification Number of assignee)
the within Security, and hereby irrevocably constitutes and appoints ____________________ attorney
to transfer the said Security on the books of the Company, with full power of substitution in the
premises. In connection with any transfer of the Security prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision) (other than any transfer pursuant to a registration statement that has been declared
effective under the Securities Act), the undersigned confirms that such Security is being
transferred:
o To ProLogis or any of its subsidiaries; or
o To a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of
1933, as amended; or
o Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; or
o Pursuant to a Registration Statement which has been declared effective under the Securities
Act of 1933, as amended, and which continues to be effective at the time of transfer.
Unless one of the boxes is checked, the trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any person other than the registered holder thereof
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings
and loan associations and credit unions) with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities to be delivered, other than to and in the name of
the registered holder.
NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change, the Put Right Notice, or the assignment must correspond with the name as written upon the
face of the Security in every particular without alteration or enlargement or any change
whatever.
A-Exh A-15
ANNEX B
1.875% Convertible Senior Notes due 2036
Originally issued November 8, 2007
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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Section 1.01 Relation to Base Indenture |
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Section 1.02 Definitions |
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ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES |
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Section 2.01 Designation and Amount |
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Section 2.02 Form of Notes |
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Section 2.03 Date and Denomination of Notes; Payments of Interest |
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Section 2.04 Intentionally Omitted |
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Section 2.05 Execution, Authentication and Delivery of Notes |
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Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on
Transfer; Depositary |
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Section 2.07 Additional Notes; Repurchases |
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Section 2.08 No Sinking Fund |
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Section 2.09 Ranking |
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ARTICLE III REDEMPTION |
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Section 3.01 Right to Redeem |
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Section 3.02 Selection of Notes to be Redeemed |
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Section 3.03 Notice of Redemption |
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ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY |
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Section 4.01 Payment of Principal and Interest |
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Section 4.02 Maintenance of Office or Agency for Exchange Agent |
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Section 4.03 Intentionally Omitted |
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Section 4.04 Intentionally Omitted |
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Section 4.05 Exclusion of Certain Provisions From Base Indenture |
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ARTICLE V DEFAULTS AND REMEDIES |
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Section 5.01 Events of Default |
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Section 5.02 Article Five of Base Indenture |
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ARTICLE VI SUPPLEMENTAL INDENTURES |
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Section 6.01 Supplemental Indentures Without Consent of Noteholders |
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Section 6.02 Modification and Amendment with Consent of Noteholders |
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B-i
TABLE OF CONTENTS
(continued)
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Section 6.03 Effect of Supplemental Indentures |
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Section 6.04 Article Nine of Base Indenture |
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ARTICLE VII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE |
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Section 7.01 Company May Consolidate, Etc. on Certain Terms |
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ARTICLE VIII EXCHANGE OF NOTES |
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Section 8.01 Exchange Privilege |
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Section 8.02 Exchange Procedures |
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Section 8.03 Reserved |
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Section 8.04 Adjustment of Exchange Rate |
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Section 8.05 Sufficient Shares to be Delivered |
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Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale |
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Section 8.07 Certain Covenants |
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Section 8.08 Responsibility of Trustee |
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Section 8.09 Notice to Holders Prior to Certain Actions |
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Section 8.10 Stockholder Rights Plans |
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Section 8.11 Ownership Limit |
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ARTICLE IX REPURCHASE OF NOTES AT OPTION OF HOLDERS |
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Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates |
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Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change |
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ARTICLE X MISCELLANEOUS PROVISIONS |
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Section 10.01 Ratification of Base Indenture |
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Section 10.02 Provisions Binding on Company’s Successors |
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Section 10.03 Official Acts by Successor Corporation |
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Section 10.04 Addresses for Notices, Etc |
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Section 10.05 Governing Law |
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Section 10.06 Non-Business Day |
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Section 10.07 Benefits of Indenture |
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Section 10.08 Table of Contents, Headings, Etc |
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Section 10.09 Execution in Counterparts |
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B-ii
TABLE OF CONTENTS
(continued)
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Section 10.10 Trustee |
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Section 10.11 Further Instruments and Acts |
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Section 10.12 Waiver of Jury Trial |
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Section 10.13 Force Majeure |
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B-iii
1.875% Convertible Senior Notes due 2037
ARTICLE I
DEFINITIONS
Section 1.01 Relation to Base Indenture. This Annex B of the Twelfth Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02 Definitions. For all purposes of this Annex B of the Twelfth Supplemental
Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture;
(b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;
(c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Annex B of the Twelfth Supplemental Indenture; and
(d) All other terms used in this Annex B of the Twelfth Supplemental Indenture, which are
defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires) shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of the execution of this Annex B of the Twelfth Supplemental Indenture. The words
“herein,” “hereof,” “hereunder,” and words of similar import refer to this Annex B of the Twelfth
Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
The terms defined in this Article include the plural as well as the singular.
“Additional Shares” shall have the meaning specified in Section 8.01(g).
“Board of Directors” means the board of directors of Parent or, if Parent shall be succeeded
by a corporation pursuant to Article VII, the board of directors of Parent’s corporate successor or
any committee of such applicable board of directors duly authorized to act generally or in any
particular respect hereunder.
“Board of Trustees” means the board of trustees of the Company or, if the Company shall be
succeeded by a corporation pursuant to Article VII, the board of trustees or directors of the
Company’s corporate successor or any committee of such applicable board duly authorized to act
generally or in any particular respect hereunder.
“Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which
banks in The City of New York or The City of Boston are not required or authorized by law or
executive order to be closed.
B-1
“cash percentage” shall have the meaning specified in Section 8.02(a)(4).
“cash percentage notice” shall have the meaning specified in Section 8.02(a)(4).
“close of business” means 5:00 p.m. (New York City time).
“Common Stock” means, subject to Section 8.06, the common stock of Parent, par value $0.01 per
share, at the date of the Twelfth Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of Parent and that are not subject to redemption by Parent;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
“Company” means ProLogis (to be known as Prologis), a Maryland real estate investment trust
and, subject to the provisions of Article VII, shall include its successors and assigns.
“Company Put Right Notice” shall have the meaning specified in Section 9.01(c).
“Company Put Right Notice Date” shall have the meaning specified in Section 9.01(c).
“Daily Exchange Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, one-twentieth (1/20) of the product of (a) the applicable Exchange Rate and (b)
the Daily VWAP of the Common Stock (or the Reference Property, if applicable) on such day.
“Daily Settlement Amount,” for each of the 20 Trading Days during the Observation Period,
shall consist of:
(i) cash equal to the lesser of $50 and the Daily Exchange Value relating to such day; and
(ii) if such Daily Exchange Value exceeds $50, a number of shares of Common Stock equal to (A)
the difference between such Daily Exchange Value and $50, divided by (B) the Daily VWAP of the
shares of Common Stock for such day, subject to the Company’s right to deliver cash in lieu of all
or a portion of such shares of Common Stock pursuant to Section 8.02(a)(4) hereof.
“Daily VWAP” for the Common Stock means, for each of the 20 consecutive Trading Days during
the Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page PLD <equity> AQR in respect of the period from 9:30 a.m.
to 4:00 p.m. (New York City time) on such Trading Day (or if such volume-weighted average price is
unavailable, the market value of one share of Common Stock on such Trading Day as the Board of
Trustees determines in good faith using a volume-weighted method).
B-2
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in the Base Indenture as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Annex B of the Twelfth Supplemental Indenture, and thereafter, “Depositary” shall mean or
include such successor.
“Distributed Property” shall have the meaning specified in Section 8.04(c).
“Dividend Threshold Amount” shall have the meaning specified in Section 8.04(d).
“Effective Date” shall have the meaning specified in Section 8.01(g)(i).
“Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.
“Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other equity security
trade on the applicable exchange or in the applicable market, regular way, without the right to
receive such issuance or distribution.
“Ex-Dividend Date” means, with respect to Section 8.01(e), the first date upon which a sale of
the shares of Common Stock does not automatically transfer the right to receive the relevant
dividend from the seller of the shares of Common Stock to its buyer.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Agent” shall mean the Trustee or any successor office or agency where the Notes may
be surrendered for exchange.
“Exchange Date” shall have the meaning specified in Section 8.02(c).
“Exchange Obligation” shall have the meaning specified in Section 8.01(a).
“Exchange Price” means as of any date $1,000 divided by the Exchange Rate as of such date.
“Exchange Rate” shall have the meaning specified in Section 8.01(a).
“Exchange Trigger Price” shall have the meaning specified in Section 8.01(c).
“Fundamental Change” shall be deemed to occur upon the consummation of any transaction or
event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with which more than
50% of the shares of Common Stock are exchanged for, converted into, acquired for or constitutes
solely the right to receive, consideration which is not at least 90% common stock (or American
Depositary Shares representing shares of common stock) that is: (a) listed on, or immediately after
the consummation of such transaction or event, will be listed on, a
B-3
United States national securities exchange or (b) approved, or immediately after such
transaction or event will be approved, for listing or quotation on any United States system of
automated dissemination of quotations of securities prices.
“Fundamental Change Company Notice” shall have the meaning specified in Section 9.02(b).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 9.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 9.02(a)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 9.02(a).
“Global Note” shall have the meaning specified in Section 2.06(e).
“Independent Securities Dealer” shall have the meaning specified in Section 8.01(b).
“interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes.
“Interest Payment Date” means May 15 and November 15 of each year, beginning on May 15, 2008.
“Last Reported Sale Price” means, with respect to the shares of Common Stock or any other
security for which a Last Reported Sale Price must be determined, on any date, the closing sale
price per share of the Common Stock or unit of such other security (or, if no closing sale price is
reported, the average of the last bid and last ask prices or, if more than one in either case, the
average of the average last bid and the average last ask prices) on such date as reported in
composite transactions for the principal U.S. securities exchange on which the Common Stock or such
other security is traded. If the Common Stock or such other security is not listed for trading on a
United States national or regional securities exchange on the relevant date, the Last Reported Sale
Price shall be the last quoted bid price per share of Common Stock or such other security in the
over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. If the shares of Common Stock or such other security are not so quoted, the
Last Reported Sale Price shall be the average of the mid-point of the last bid and ask prices per
share of Common Stock or such other security on the relevant date from each of at least three
nationally recognized independent investment banking firms selected from time to time by the Board
of Trustees for that purpose. The Last Reported Sale Price shall be determined without reference to
extended or after-hours trading.
“Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options, contracts
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or future contracts relating to the Common Stock, and such suspension or limitation occurs or
exists at any time before 1:00 p.m. (New York City time) on such day.
“Maturity Date” means November 15, 2037.
“Measurement Period” shall have the meaning specified in Section 8.01(b).
“Merger Event” shall have the meaning specified in Section 8.06.
“Noteholder” or “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), means any person in whose name at the time a particular
Note is registered on the Security Register.
“Notice of Exchange” shall have the meaning specified in Section 8.02(c).
“Observation Period” means the 20 consecutive Trading Day period beginning on and including
the second Trading Day after the related Exchange Date in respect of such Note.
“opening of business” means 9:00 a.m. (New York City time).
“Parent” means Prologis, Inc., a Maryland corporation, and subject to the provisions of
Article VII, shall include its successors and assigns.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306 of the Base Indenture in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
“Put Right Repurchase Date” shall have the meaning assigned to it in Section 9.01(b).
“Put Right Repurchase Notice” shall have the meaning assigned to it in Section 9.01(b)(i).
“Put Right Repurchase Price” shall have the meaning assigned to it in Section 9.01(b).
“Record Date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.
“Reference Property” shall have the meaning specified in Section 8.06(b).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Settlement Amount” shall have the meaning specified in Section 8.02(a)(1).
“Spin-Off” shall have the meaning specified in Section 8.04(c).
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“Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Exchange Rate as set forth in
Section 8.01(e)(ii) hereof, which shall be equal to (i) if holders of shares of Common Stock
receive only cash in such Fundamental Change, the cash amount paid per share of Common Stock and
(ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the
five consecutive Trading Day period ending on the Trading Day preceding the Effective Date of the
Fundamental Change.
“Trading Day” means a day during which (i) trading in Common Stock generally occurs, (ii)
there is no Market Disruption Event and (iii) a Last Reported Sale Price of the Common Stock (other
than a Last Reported Sale Price referred to in the next to last sentence of such definition) is
available for such day; provided that if the shares of Common Stock are not admitted for trading or
quotation on or by any exchange, bureau or other organization referred to in the definition of Last
Reported Sale Price (excluding the next to last sentence of that definition), Trading Day shall
mean any Business Day.
“Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Company and delivered to the Trustee for $2.0
million principal amount of Notes 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, 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, that one bid shall be used. If the Company cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the Exchange Rate.
“Trigger Event” shall have the meaning specified in Section 8.04(c).
“Underwriters” means Wachovia Capital Markets, LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
“Underwriting Agreement” means that certain Underwriting Agreement relating to the Notes,
dated November 1, 2007, between the Company and the Underwriters.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “1.875% Convertible
Senior Notes due 2037.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Annex B of the Twelfth Supplemental Indenture is initially limited to
$1,120,500,000, subject to Section 2.07 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes
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pursuant to Section 2.06, Section 8.02 and Section 9.02 hereof and Section 306 and Section 906
of to the Base Indenture.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the form set forth in Exhibit A.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Annex B of the Twelfth Supplemental Indenture, or as may be required by the Depositary, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation system on which the
Notes may be listed or designated for issuance, or to conform to usage or to indicate any special
limitations or restrictions to which any particular Notes are subject.
A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this
Annex B of the Twelfth Supplemental Indenture. Payment of principal and accrued and unpaid interest
on a Global Note shall be made to the Holder of such Note on the date of payment, unless a Record
Date or other means of determining Holders eligible to receive payment is provided for herein.
The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Annex B of
the Twelfth Supplemental Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Annex B of the Twelfth Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York or the City of Boston, which shall
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initially be an office or agency of the Trustee. The Company shall pay interest (i) on any
Notes in certificated form by check mailed to the address of the Person entitled thereto as it
appears in the Security Register (or upon written application by such Person to the Security
Registrar not later than the relevant record date, by wire transfer in immediately available funds
to such Person’s account within the United States, if such Person is entitled to interest on an
aggregate principal in excess of $1,000,000) or (ii) on any Global Note by wire transfer of
immediately available funds to the account of the Depositary or its nominee. The term “Record
Date” with respect to any Interest Payment Date shall mean the May 1 or November 1 preceding the
applicable May 15 or November 15 Interest Payment Date, respectively.
Section 2.04 Intentionally Omitted.
Section 2.05 Execution, Authentication and Delivery of Notes. Section 303 of the Base
Indenture shall be applicable to the Notes.
Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.
(a) The Company shall provide for the registration of the Notes and of transfers of the Notes
in the Security Register. Upon surrender for registration of transfer of any Note to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.
No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required
to exchange or register a transfer of (a) any Notes surrendered for exchange or, if a portion of
any Note is surrendered for exchange, such portion thereof surrendered for exchange or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article IX hereof.
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All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Annex B of the Twelfth Supplemental Indenture shall be the valid, binding and legal
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Annex B of the Twelfth Supplemental Indenture as the Notes surrendered upon such registration of
transfer or exchange.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or under applicable law
with respect to any transfer of any interest in any Note 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 instrument, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note, which does not involve the
issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Annex B of the Twelfth Supplemental Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary therefor.
Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms
and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate
principal amount, which will form the same series with the Notes initially issued hereunder,
provided that no such additional Notes may be issued unless fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes. The Company may also from time to time
repurchase the Notes in open market purchases by tender at any price or by private agreement
without prior notice to Noteholders.
Section 2.08 No Sinking Fund. The provisions of Article Twelve of the Base Indenture shall
not be applicable to the Notes. No sinking fund is provided for the Notes.
Section 2.09 Ranking. The Notes constitute a senior general obligation of the Company,
ranking equally with other existing and future senior and unsubordinated indebtedness of the
Company and ranking senior in right of payment to any future indebtedness of the Company that is
expressly made subordinate to the Notes by the terms of such indebtedness.
ARTICLE III
REDEMPTION
Section 3.01 Right to Redeem.
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(a) Notwithstanding any provision of the Base Indenture, as modified by this Annex B of the
Twelfth Supplemental Indenture, to the contrary, the Company may redeem the Notes prior to November
15, 2037, in whole, in order to preserve Parent’s status as a real estate investment trust under
the Code.
(b) Except as provided in Section 3.01(a), the Company may not redeem the Notes prior to
January 15, 2013. On or after January 15, 2013, the Company, at its option, may redeem the Notes
from time to time in whole or in part.
(c) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest; provided, however, that the
Company may deduct and withhold from such Redemption Price any amount required to be deducted and
withheld under applicable law.
Section 3.02 Selection of Notes to be Redeemed.
(a) The provisions of Section 1103 of the Base Indenture shall govern the selection of Notes
to be redeemed by the Trustee provided, however, that if less than all of the Notes are to be
redeemed, the Trustee shall make the selection from the Notes of that series Outstanding and not
previously called for redemption, by lot, or in its discretion, on a pro rata basis.
(b) If any Note selected for partial redemption is exchanged in part before termination of the
exchange right with respect to the portion of the Note so selected, the exchanged portion of such
Note shall be deemed to be part of the portion selected for redemption. Notes which have been
exchanged subsequent to the Trustee commencing selection of Notes to be redeemed but prior to
redemption of such Notes shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 3.03 Notice of Redemption. The provisions of Section 1104 of the Base Indenture shall
govern notices of redemption of the Notes; provided, however, that in addition to the information
specified in Section 1104 of the Base Indenture, notices of redemption of the Notes shall also
state:
(a) the then-current Exchange Price;
(b) the name and address of the Exchange Agent;
(c) that Holders who wish to exchange Notes must surrender such Notes for exchange no later
than the close of business on the second Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth herein; and
(d) whether the Company will satisfy its Exchange Obligation with respect to any Notes called
for redemption that are surrendered for exchange in cash, shares of Common Stock or both as
provided herein; provided that the Company may not provide notice of a redemption of Notes at the
Company’s option that specifies that the Company will settle exchanges of Notes prior to such
redemption in cash and shares of Common Stock unless, at the
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time of such notice, the Company has available to it a sufficient number of authorized shares
of Common Stock to satisfy its Exchange Obligation in respect of the Notes to be redeemed.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest.
(a) Sections 307 and 1001 of the Base Indenture shall apply to the Notes; provided, however,
that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at
the application of such Holder in writing to the Security Registrar not later than the relevant
record date, accrued and unpaid interest on such Holder’s Notes shall be paid by wire transfer in
immediately available funds to such Holder’s account in the United States supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from Trustee); provided further
that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time to time.
(b) Except as otherwise provided in this Section 4.01(b), a Holder of any Notes at the close
of business on a Record Date shall be entitled to receive interest on such Notes on the
corresponding Interest Payment Date. A Holder of any Notes as of a Record Date that are exchanged
after the close of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall be entitled to receive interest on the principal amount
of such Notes, notwithstanding the exchange of such Notes prior to such Interest Payment Date.
However, a Holder that surrenders any Notes for exchange between the close of business on a Record
Date and the opening of business on the corresponding Interest Payment Date shall be required to
pay the Company an amount equal to the interest payable by the Company with respect to such Notes
on such Interest Payment Date at the time such Holder surrenders such Notes for exchange, provided,
however, that this sentence shall not apply to a Holder that exchanges Notes:
(i) in respect of which the Company has given notice of redemption pursuant to Section
3.03 on a Redemption Date that is after the relevant Record Date and on or prior to the
relevant Interest Payment Date; or
(ii) to the extent of any overdue interest, if any overdue interest exists at the time
of exchange with respect to such Notes;
(iii) in connection with a Fundamental Change in which the Company has specified a
Fundamental Change Repurchase Date that is after a Record Date and on or prior to the next
Interest Payment Date; or
(iv) after the Record Date immediately preceding the Maturity Date.
Accordingly, a Holder that exchanges Notes under any of the circumstances described in clauses (i),
(ii), (iii) or (iv) above will not be required to pay to the Company an amount equal to the
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interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.
Section 4.02 Maintenance of Office or Agency for Exchange Agent. If at any time the Exchange
Agent is not the Trustee or an office or agency designated or appointed by the Trustee, the Company
will give prompt written notice to the Trustee of the location of such Exchange Agent. If at any
time the Company shall fail to maintain an office or agency for the Exchange Agent, presentations,
surrenders, notices and demands related to exchanges of Notes may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan initially
located at 100 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Division.
Section 4.03 Intentionally Omitted.
Section 4.04 Intentionally Omitted.
Section 4.05 Exclusion of Certain Provisions From Base Indenture. Section 1004, Section 1006,
Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002,
Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second
Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture
shall be applicable to the Notes.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default. The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to the events described in clauses
(1), (4), (5) (as amended by the Second Supplemental Indenture to the Base Indenture), (6) (as
amended by the Second Supplemental Indenture to the Base Indenture), (7) and (8) of the Base
Indenture, shall be Events of Default with respect to the Notes:
(a) default in the payment of principal or premium, if any, of any Note when due and payable
on the Maturity Date, upon redemption, repurchase, declaration or otherwise;
(b) failure by the Company to comply with its obligation to exchange the Notes into cash,
shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, upon
exercise of a Holder’s exchange right, and such failure continues for a period of ten days; or
(c) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.02 when due, and such failure continues for a period of two days.
Section 5.02 Article Five of Base Indenture. Except as amended by Section 5.01 hereof, all of
the provisions of Article Five of the Base Indenture shall be applicable to the Notes.
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ARTICLE VI
SUPPLEMENTAL INDENTURES
Section 6.01 Supplemental Indentures Without Consent of Noteholders. The provisions of
Section 901 of the Base Indenture shall be applicable to the Notes.
Section 6.02 Modification and Amendment with Consent of Noteholders. Section 902 of the Base
Indenture shall be applicable to the Notes. As contemplated by Sections 301 and 902 of the Base
Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding
Note affected thereby:
(a) make any change that adversely affects the exchange rights of any Notes;
(b) reduce the Fundamental Change Repurchase Price, Redemption Price or Put Right Repurchase
Price of any Note, or amend or modify in any manner adverse to Noteholders the Company’s obligation
to make such payments or Article III or Article IX of this Annex B of the Twelfth Supplemental
Indenture, whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise.
Section 6.03 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, the Base Indenture and this Annex B of the Twelfth Supplemental
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a
part of this Annex B of the Twelfth Supplemental Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
Section 6.04 Article Nine of Base Indenture. Except as amended by this Article VI, all of the
provisions of Article Nine of the Base Indenture shall be applicable to the Notes.
ARTICLE VII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base
Indenture shall be applicable to the Notes.
ARTICLE VIII
EXCHANGE OF NOTES
Section 8.01 Exchange Privilege.
(a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11
hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have
the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged
is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the
close of business on the scheduled Trading Day immediately preceding October
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15, 2012 at a rate (the “Exchange Rate”) of 5.4874 shares of Common Stock (subject to
adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the
“Exchange Obligation”) under the circumstances and during the periods set forth below. On and
after October 15, 2012, regardless of the conditions described in clause (b) through (f) below,
upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a
Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the
portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at
any time prior to the close of business on the scheduled Trading Day immediately preceding the
Maturity Date at an Exchange Rate of 5.4874 shares of Common Stock (subject to adjustment by the
Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(b) (1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its
Notes prior to October 15, 2012, during the five Business Day period immediately after any ten
consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Notes for each day of such Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such
date, all as determined by the Trustee in the manner described in the immediately succeeding
paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless
requested by the Company to do so in writing, and the Company shall have no obligation to make such
request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of
Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such
time and the then-applicable Exchange Rate, at which time the Company shall select three
independent nationally recognized securities dealers (each, an “Independent Securities Dealer”),
request that the Independent Securities Dealers provide a secondary market quotation for the Notes
and provide such determination to the Company and the Trustee in writing, and the Company shall
instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price
condition set forth above has been met, the Company shall so notify the Noteholders. If at any
time after the Trading Price condition set forth above has been met, the Trading Price per $1,000
principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on
such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and
whether the Trading Price condition set forth in the first sentence of the immediately preceding
paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day
of determination (as identified in such Certificate), the name of the Independent Securities
Dealers providing the secondary market bid quotations, a statement certifying that that such
dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market
bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached
to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The
Trustee shall be entitled to conclusively rely, without independent verification, on the quotations
provided by the Company in making its determinations hereunder. On the basis of such quotations,
the Trustee shall determine the
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Trading Price of the Notes, and provide such determination to the Company. Absent manifest
error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and
until a Responsible Officer of the Trustee shall have received a request from the Company for
determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein,
the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or
whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during
any calendar quarter after the quarter ended December 31, 2007, and only during such calendar
quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during
the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar
quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day,
which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The
Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter
whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in
the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with
Section 1104 of the Base Indenture and Section 3.03 of this Annex B of the Twelfth Supplemental
Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the
close of business on the second Business Day immediately preceding the corresponding Redemption
Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase
Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the
Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex B of
the Twelfth Supplemental Indenture.
(e) (1) In the event that the Company or Parent elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling
them to purchase, for a period expiring within 60 days, shares of Common Stock at a price
less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately
preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt
securities of the Company or Parent or rights to purchase the Company’s or Parent’s
securities, which distribution has a per share value (as determined by the Board of
Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day
immediately preceding the date of declaration of such distribution,
then, in either case, Holders may surrender the Notes for exchange at any time on and after the
date that Parent provides notice to Holders referred to in the next sentence until the earlier of
the close of business on the Business Day immediately preceding the Ex-Dividend Date for such
distribution or the date Parent announces that such distribution will not take place. The Company
shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and
of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date
for such distribution.
B-15
(2) If the Company is a party to any transaction or event that constitutes a Fundamental
Change, a Holder may surrender Notes for exchange at any time from and after the 30th scheduled
Trading Day prior to the anticipated Effective Date of such transaction or event until the related
Fundamental Change Repurchase Date and, upon such surrender, the Holder shall be entitled to the
increase in the Exchange Rate, if any, specified in Section 8.01(g). The Company shall give notice
to all record Noteholders and the Trustee and issue a press release of the Fundamental Change no
later than 30 scheduled Trading Days prior to the anticipated Effective Date of the Fundamental
Change.
(3) If Parent is a party to a consolidation, merger, binding share exchange or sale or
conveyance of all or substantially all of its properties and assets, in each case pursuant to which
the Common Stock would be exchanged into cash, securities and/or other property, then the Holders
shall have the right to exchange Notes at any time beginning fifteen calendar days prior to the
date announced by Parent as the anticipated effective date of the transaction and until and
including the date that is fifteen calendar days after the date that is the effective date of such
transaction; provided such transaction does not otherwise constitute a Fundamental Change to which
the provisions of Section 8.01(e)(ii) shall apply. The Company shall give notice to all record
Noteholders and the Trustee and issue a press release at least 20 calendar days prior to the
anticipated effective date of such transaction. If the Board of Directors determines the
anticipated effective date of the transaction, such determination shall be conclusive and binding
on the Holders.
(f) The Notes shall be exchangeable at any time beginning on the first Business Day after any
30 consecutive Trading Day period during which the Common Stock is not listed on a U.S. national
securities exchange.
(g) (1) If a Noteholder elects to exchange Notes in connection with a Fundamental Change that
occurs prior to January 15, 2013, the Exchange Rate applicable to each $1,000 principal amount of
Notes so exchanged shall be increased by an additional number of shares of Common Stock (the
“Additional Shares”) as described below. Settlement of Notes tendered for exchange to which
Additional Shares shall be added to the Exchange Rate as provided in this subsection shall be
settled pursuant to Section 8.02 below, as applicable. For purposes of this Section 8.01(g), an
exchange shall be deemed to be “in connection with” a Fundamental Change to the extent that the
related exchange notice is delivered during the time period beginning on the 30th Trading Day prior
to the anticipated Effective Date of such Fundamental Change and ending on the related Fundamental
Change Repurchase Date, inclusive (regardless of whether the provisions of clauses (b), (c), (d),
(e) or (f) of this Section 8.01 shall apply to such exchange). Such exchange notice shall indicate
that the Holder of Notes has elected to exchange Notes in connection with a Fundamental Change;
provided, however, that the failure to so indicate shall not in any way affect the Exchange
Obligation or the right of such Holder to receive Additional Shares in connection with such
exchange.
(i) The number of Additional Shares by which the Exchange Rate will be increased shall
be determined by reference to the table attached as Schedule A hereto, based on the date on
which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the
Stock Price; provided, that if the Stock Price is between two Stock Price amounts in the
table or the Effective Date is between two Effective Dates in
B-16
the table, the number of Additional Shares shall be determined by a straight-line
interpolation between the number of Additional Shares set forth for the next higher and next
lower Stock Price amounts and the two nearest Effective Dates, as applicable, based on a
365-day year; provided further that if (1) the Stock Price is greater than $268.62 per share
of Common Stock (subject to adjustment in the same manner as set forth in Section 8.04), no
Additional Shares will be added to the Exchange Rate, and (2) the Stock Price is less than
$142.97 per share of Common Stock (subject to adjustment in the same manner as set forth in
Section 8.04), no Additional Shares will be added to the Exchange Rate. Notwithstanding the
foregoing, in no event will the total number of shares of Common Stock issuable upon
exchange exceed 6.5762 per $1,000 principal amount of Notes (subject to adjustment in the
same manner as set forth in clauses (a), (b) and (c) of Section 8.04).
(ii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Exchange Rate of the Notes is adjusted. The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Exchange Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares
within the table shall be adjusted in the same manner as the Exchange Rate as set forth in
Section 8.04 (other than by operation of an adjustment to the Exchange Rate by adding
Additional Shares).
Section 8.02 Exchange Procedures.
(a) (1) The Company shall settle its Exchange Obligations as described in Section 8.02(a)(3),
unless, within the applicable time period specified in this Section 8.02(a)(1), the Company elects
to settle its Exchange Obligations as described in Section 8.02(a)(2) or Section 8.02(a)(4). The
cash and/or shares of Common Stock which the Company is required to deliver in accordance with this
Section 8.02 in settlement of its Exchange Obligations is referred to herein as the “Settlement
Amount.” If the Company desires to settle its Exchange Obligations as described in Section
8.02(a)(2) or Section 8.02(a)(4), the Company shall notify each exchanging Noteholder by notice to
the Trustee (for further distribution to Noteholders) of the method the Company will choose to
satisfy its Exchange Obligations no later than the second Trading Day immediately following the
Company’s receipt of a Notice of Exchange from such Holder, and such notice shall specify the
section of this Annex B of the Twelfth Supplemental Indenture pursuant to which the Company is
electing to satisfy its exchange obligations; provided, however, that the Company shall have the
right to irrevocably elect, in its sole discretion and without the consent of Noteholders, by
notice to the Trustee (for further distribution to Noteholders), on or prior to October 15, 2012,
to settle all of its future Exchange Obligations entirely in shares of Common Stock as described in
Section 8.02(a)(2), and provided further, that the Company is required to settle all exchanges with
an Exchange Date occurring on or after October 15, 2012 in the same manner, and the Company shall
notify Noteholders by notice to the Trustee (for further distribution to Noteholders) of the manner
of settlement (including specifying the applicable section of this Annex B of the Twelfth
Supplemental Indenture that describes such manner of settlement) on or before such date. The
Company shall treat all Noteholders exchanging on the same Trading Day in the same manner; however,
the
B-17
Company shall not have any obligation to settle its Exchange Obligations arising on different
Trading Days in the same manner, except for exchanges with an Exchange Date occurring on or after
October 15, 2012, which shall all be satisfied in the same manner.
(2) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(2), the Company
shall have the right to settle its Exchange Obligations entirely in shares of Common Stock. If the
Company elects to satisfy its Exchange Obligation entirely in shares of Common Stock, the Company
shall deliver a number of shares of Common Stock equal to (i) the aggregate principal amount of
Notes to be exchanged divided by $1,000, multiplied by (ii) the applicable Exchange Rate (which
shall include any increases to reflect any Additional Shares that such Holder is entitled to
receive pursuant to Section 8.01(g) above). The Company shall deliver such shares of Common Stock
as soon as practicable after it has notified the exchanging Holder pursuant to Section 8.02(a)(1)
above, that it has elected to satisfy its Exchange Obligation entirely in shares of Common Stock.
(3) If the Company does not elect, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in Section 8.02(a)(2) or 8.02(a)(4),
the Company shall settle its Exchange Obligations as described in this Section 8.02(a)(3), subject
to Section 8.02(b) hereof. The Company shall deliver in respect of each $1,000 principal amount of
Notes being exchanged a Settlement Amount equal to the sum of the Daily Settlement Amounts for each
of the 20 consecutive Trading Days during the Observation Period, on the third Trading Day
immediately following the last day of the related Observation Period; provided that the Company
will deliver cash in lieu of fractional shares of Common Stock as set forth pursuant to clause (k)
below. The Daily Settlement Amounts shall be determined by the Company promptly following the last
day of the Observation Period.
(4) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(4), the Company
shall have the right to settle all or a portion of the amount by which the Daily Exchange Value
exceeds $50 in cash in accordance with this Section 8.02(a)(4). In such case, the Company shall
specify a percentage of the amount by which the Daily Exchange Value exceeds $50 that will be
settled in cash, or the “cash percentage.” The Company will inform exchanging Holders by notice to
the Trustee (for further distribution to Noteholders) no later than two Trading Days prior to the
first day of the applicable Observation Period if it elects to pay cash upon exchange of the Notes
and shall specify in such notice (the “cash percentage notice”) the applicable cash percentage. If
the Company elects to specify a cash percentage, the amount of cash that the Company shall deliver
in respect of each Trading Day in the applicable Observation Period shall equal the product of (w)
the cash percentage and (x) the amount by which the Daily Exchange Value exceeds $50 for such
Trading Day. The number of shares of Common Stock deliverable in respect of each Trading Day in
the applicable Observation Period shall equal (i) the product of (y) 100% minus the cash percentage
and (z) the amount by which the Daily Exchange Value exceeds $50 for such Trading Day, divided by
(ii) the Daily VWAP of the Common Stock for such Trading Day. If the Company does not specify a
cash percentage, it must settle the entire amount by which the Daily Exchange Value exceeds $50
with shares of Common Stock pursuant to Section 8.02(a)(3) above; provided, however, that the
Company will deliver cash in lieu of fractional shares of Common Stock as set forth pursuant to
clause (k)
B-18
below. If the Company specifies a cash percentage, the Company shall satisfy its Exchange
Obligation by delivering, on the third Trading Day immediately following the last day of the
related Observation Period, the amount of cash and the number of shares of Common Stock deliverable
pursuant to this Section 8.02(a)(4).
(b) Notwithstanding Section 8.02(a), the Company shall satisfy the Exchange Obligation with
respect to each $1,000 principal amount of Notes tendered for exchange to which Additional Shares
shall be added to the Exchange Rate as set forth in Section 8.01(g) pursuant to this clause (b).
(A) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is prior to the third Trading Day preceding the Effective Date of the
Fundamental Change, the Company will satisfy the related Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
by delivering the amount of cash and shares of Common Stock, if any (based on the Exchange
Rate, but without regard to the number of Additional Shares to be added to the Exchange Rate
pursuant to Section 8.01(g)) on the third Trading Day immediately following the last day of
the applicable Observation Period. In addition, as soon as practicable following the
Effective Date of the Fundamental Change, the Company will deliver the increase in such
amount of cash and Reference Property deliverable in lieu of shares of Common Stock, if any,
as if the Exchange Rate had been increased by such number of Additional Shares during the
related Observation Period (and based upon the related Daily VWAP prices during such
Observation Period). If such increased amount of cash and Common Stock, if any, results in
an increase to the amount of cash to be paid to Holders, the Company will pay such increase
in cash, and if such increased amount results in an increase to the number of shares of
Common Stock, the Company will deliver such increase by delivering Reference Property based
on such increased number of shares.
(B) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is on or following the third scheduled Trading Day preceding the Effective Date
of such Fundamental Change, the Company will satisfy the Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
(based on the Exchange Rate as increased by the Additional Shares pursuant to Section
8.01(g) above) on the later to occur of (x) the Effective Date of the Fundamental Change and
(y) the third Trading Day immediately following the last day of the applicable Observation
Period.
(c) Before any Holder of a Note shall be entitled to exchange the same as set forth above,
such Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and Section
8.02(i) and, if required, pay all taxes or duties, if any, and (2) in the case of a Note issued in
certificated form, (A) complete and manually sign and deliver an irrevocable written notice to the
Exchange Agent in the form on the reverse of such certificated Note (or a facsimile thereof) (a
“Notice of Exchange”) at the office of the Exchange Agent and shall state in writing therein the
principal amount of Notes to be exchanged and the name or names (with addresses) in
B-19
which such Holder wishes the certificate or certificates for any shares of Common Stock, if
any, to be delivered upon settlement of the Exchange Obligation to be registered, (B) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Exchange Agent, (C) if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in Section 4.01(b) and Section 8.02(i), and (D) if required, pay all taxes or duties, if any.
A Note shall be deemed to have been exchanged immediately prior to the close of business on the
date (the “Exchange Date”) that the Holder has complied with the requirements set forth in this
Section 8.02(c).
No Notice of Exchange with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Put Right Repurchase Notice or a Fundamental Change Repurchase Notice
and not validly withdrawn such Put Right Repurchase Notice or Fundamental Change Repurchase Notice
in accordance with the applicable provisions of Section 9.01 or 9.02, as the case may be.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the
Exchange Obligation with respect to such Notes, if any, that shall be payable upon exchange shall
be computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so surrendered.
(d) Delivery of the amounts owing in satisfaction of the Exchange Obligation shall be made by
the Company in no event later than the date specified in Section 8.02(a), except to the extent
specified in Section 8.02(b). The Company shall make such delivery by paying the cash amount owed
to the Exchange Agent or to the Holder of the Note surrendered for exchange, or such Holder’s
nominee or nominees, and by issuing, or causing to be issued, and delivering to the Exchange Agent
or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer
through the Depositary for the number of full shares of Common Stock to which such Holder shall be
entitled as part of such Exchange Obligation (together with any cash in lieu of fractional shares).
(e) In case any Note shall be surrendered for partial exchange, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unexchanged portion of the surrendered Notes.
(f) If a Holder submits a Note for exchange, the Company shall pay all stamp and other duties,
if any, which may be imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon
the exchange. However, the Holder shall pay any such tax that is due because the Holder requests
any shares of Common Stock to be issued in a name other than the Holder’s name. The Exchange Agent
may refuse to deliver the certificates representing the shares of Common Stock being issued in a
name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the Holder’s name. Nothing
herein shall preclude any tax withholding required by law or regulations.
B-20
(g) Except as provided in Section 8.04, no adjustment shall be made for dividends on any
shares issued upon the exchange of any Note as provided in this Article.
(h) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
exchange of Notes effected through any Exchange Agent other than the Trustee.
(i) Upon exchange, a Noteholder will not receive any separate cash payment for accrued and
unpaid interest, except as set forth below. The Company’s settlement of its Exchange Obligation as
described above shall be deemed to satisfy its obligation to pay the principal amount of the Note
and accrued and unpaid interest to, but not including, the Exchange Date. As a result, accrued and
unpaid interest to, but not including, the Exchange Date shall be deemed to be paid in full rather
than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Notes are
exchanged after the close of business on a Record Date, Holders of such Notes as of the close of
business on the Record Date will receive the interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange during the
period from the close of business on any regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on the Notes so exchanged; provided, however, that no such payment need be made
(1) if the Company has called the Notes for redemption or (2) to the extent of any overdue interest
existing at the time of exchange with respect to such Note, (3) to Notes surrendered for exchange
in connection with a Fundamental Change in which the Company has specified a Fundamental Change
Repurchase Date that is after a Record Date and on or prior to the next Interest Payment Date, or
(4) to Notes surrendered for exchange after the Record Date immediately preceding the Maturity
Date. Except as described above, no payment or adjustment will be made for accrued interest on
exchanged Notes.
(j) The Person in whose name the certificate for any shares of Common Stock issued upon
exchange is registered shall be treated as a stockholder of record on and after the Exchange Date;
provided, however, that no surrender of Notes on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons entitled to receive
the shares of Common Stock upon such exchange as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such stock transfer books
are open; such exchange shall be at the Exchange Rate in effect on the date that such Notes shall
have been surrendered for exchange, as if the stock transfer books of the Company had not been
closed. Upon exchange of Notes, such Person shall no longer be a Noteholder.
(k) No fractional shares of Common Stock shall be issued upon exchange of any Note or Notes.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the number
of full shares that shall be issued upon exchange thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock that would otherwise
B-21
be issued upon exchange of any Note or Notes (or specified portions thereof), the Company
shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a
share) in an amount equal to the same fraction of the Last Reported Sale Price of the Common Stock
on the last day of the applicable Observation Period.
(l) Reserved.
Section 8.03 Reserved.
Section 8.04 Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to
time by the Company as follows:
(a) In case Parent shall issue Common Stock as a dividend or distribution to holders of the
outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common
Stock or combination into a lesser number of shares of Common Stock, the Exchange Rate shall be
adjusted based on the following formula:
|
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|
|
|
where |
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|
|
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ER0
|
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=
|
|
the Exchange Rate in effect immediately prior to such event; |
|
|
|
|
|
ER'
|
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=
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|
the Exchange Rate in effect immediately after such event; |
|
|
|
|
|
OS0
|
|
=
|
|
the number of shares of Common Stock outstanding immediately prior to such event; and |
|
|
|
|
|
OS'
|
|
=
|
|
the number of shares of Common Stock outstanding immediately after such event. |
Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Business Day following the record date fixed for such determination. If any dividend or
distribution of the type described in this Section 8.04(a) is declared but not so paid or made, or
the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the
Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares
of Common Stock, as the case may be, to the Exchange Rate that would then be in effect if such
dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common
Stock any rights, warrants or convertible securities entitling them (for a period expiring within
sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common
Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the
Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate
shall be adjusted based on the following formula:
B-22
|
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where |
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|
|
|
|
|
|
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ER0
|
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=
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|
the Exchange Rate in effect immediately prior to such event; |
|
|
|
|
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ER'
|
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=
|
|
the Exchange Rate in effect immediately after such event; |
|
|
|
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OS0
|
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=
|
|
the number of shares of Common Stock outstanding immediately prior to such event; |
|
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X
|
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=
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|
the total number of shares of Common Stock issuable pursuant
to such rights, warrants or convertible securities; and |
|
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|
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Y
|
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=
|
|
the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights, warrants or
convertible securities divided by the average of the Last
Reported Sale Prices per share of Common Stock over the ten
consecutive Trading Day period ending on the Business Day
immediately preceding the record date (or, if later, the
Ex-Date relating to such distribution) for the issuance of
such rights, warrants or convertible securities. |
Such adjustment shall be successively made whenever any such rights, warrants or convertible
securities are issued and shall become effective immediately after 9:00 a.m., New York City time,
on the Business Day following the date fixed for such determination. If such rights, warrants or
convertible securities are not so exercised prior to their expiration, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such record date for such
distribution had not been fixed.
In determining whether any rights, warrants or convertible securities entitle the holder
thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Last
Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of
announcement of such issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by Parent for such
rights, warrants or convertible securities and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of
Trustees.
(c) In case Parent shall distribute to all or substantially all holders of its Common Stock
shares of Capital Stock, evidences of its indebtedness or other assets or property of Parent
(including securities, but excluding dividends and distributions covered by Section 8.04(a),
Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with
respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or
property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such
case the Exchange Rate shall be adjusted based on the following formula:
B-23
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where |
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ER0
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=
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the Exchange Rate in effect immediately prior to such distribution; |
|
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ER
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=
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the Exchange Rate in effect immediately after such distribution; |
|
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SP0
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=
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|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day
period ending on the Business Day immediately preceding the record date for such distribution (or, if
earlier, the Ex-Date relating to such distribution); and |
|
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FMV
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=
|
|
the fair market value (as determined by the Board of Trustees) of the Distributed Property distributed
with respect to each outstanding share of Common Stock on the record date for such distribution (or, if
earlier, the Ex-Date relating to such distribution). |
Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the
Business Day following the date fixed for the determination of stockholders entitled to receive
such distribution; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one share of Common Stock is equal to or
greater than SP0 as set forth above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right to receive, for each $1,000
principal amount of Notes upon exchange, the amount of Distributed Property such Holder would have
received had such Holder owned a number of shares of Common Stock equal to the Exchange Rate on the
record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Trustees determines the fair market value of
any distribution for purposes of this Section 8.04(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in determining SP0 above.
With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of Capital Stock, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), unless the
Company distributes such shares of Capital Stock or equity interests to each Noteholder on the same
basis as such Noteholder would have received had it exchanged its Notes solely into shares of
Common Stock immediately prior to such dividend or distribution, the Exchange Rate in effect
immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of
stockholders entitled to receive the distribution will be increased based on the following formula:
B-24
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where |
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ER0
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=
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the Exchange Rate in effect immediately prior to such distribution; |
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ER'
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=
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the Exchange Rate in effect immediately after such distribution; |
|
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FMV0
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=
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|
the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest
distributed to holders of shares of Common Stock applicable to one share of Common Stock over the
first ten consecutive Trading Day period after the effective date of the Spin-Off; and |
|
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MP0
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=
|
|
the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive
Trading Day period after the effective date of the Spin-Off. |
Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any exchange within the ten Trading Days following any
Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between such Spin-Off and the Exchange Date in
determining the applicable Exchange Rate.
Rights or warrants distributed by Parent to all holders of Common Stock, entitling the holders
thereof to subscribe for or purchase shares of Common Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified event or events
(“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of shares of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 8.04 (and no adjustment
to the Exchange Rate under this Section 8.04 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section
8.04(c). If any such right or warrant, including any such existing rights or warrants distributed
prior to the date of this Annex B of the Twelfth Supplemental Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the occurrence of any and
each such event shall be deemed to be the date of distribution and record date with respect to new
rights or warrants with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under
this Section 8.04 was made, (1) in the case of any such rights or warrants that shall all have been
redeemed or repurchased without exercise by any holders thereof, the Exchange Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or
B-25
been terminated without exercise by any holders thereof, the Exchange Rate shall be readjusted
as if such rights and warrants had not been issued.
For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or
distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock
to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of
Common Stock to which Section 8.04(a) or Section 8.04(b) applies (or both), shall be deemed instead
to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital
Stock other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies
(and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Exchange Rate adjustment
required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall
then be made), except (A) the record date of such dividend or distribution shall be substituted as
“the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a)
and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to such event” within the meaning of Section
8.04(a).
(d) In case Parent shall pay a dividend or make a distribution consisting exclusively of cash
to all or substantially all holders of its Common Stock to the extent that the aggregate of all
such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount for
such quarter, the Exchange Rate shall be adjusted based on the following formula:
|
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|
|
|
where |
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|
|
|
|
|
|
|
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ER0
|
|
=
|
|
the Exchange Rate in effect immediately prior to
the record date for such distribution; |
|
|
|
|
|
ER'
|
|
=
|
|
the Exchange Rate in effect immediately after the
record date for such distribution; |
|
|
|
|
|
SP0
|
|
=
|
|
the average of the Last Reported Sale Prices of
the Common Stock over the period of ten
consecutive Trading Days ending the Business Day
immediately preceding the record date (as defined
in clause (f) of this Section) for such
distribution (or, if earlier, the Ex-Date relating
to such distribution); |
|
|
|
|
|
T
|
|
=
|
|
the dividend threshold amount (“Dividend Threshold
Amount”), which amount shall initially be $1.0305
per quarter and which shall be appropriately
adjusted from time to time for any stock dividends
on, or subdivisions or combinations of, Common
Stock; provided, that if an Exchange Rate
adjustment is required to be made as a result of a
distribution that is not a quarterly dividend
either in whole or in part, the Dividend Threshold
Amount shall be deemed to be zero; and |
|
|
|
|
|
C
|
|
=
|
|
the amount in cash per share that Parent
distributes to holders of Common Stock. |
B-26
Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the
record date for such dividend or distribution; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than SP0 above, in lieu
of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon exchange of a Note (or any portion thereof) the amount of cash such
Holder would have received had such Holder owned a number of shares equal to the Exchange Rate on
the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared.
For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become exchangeable into more
than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this
Section 8.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
exchangeable equal to the number of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.
(e) In case Parent or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for all or any portion of the shares of Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of Common Stock exceeds the
Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), the Exchange Rate shall be increased based on the following formula:
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|
where |
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|
|
|
|
|
|
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ER0
|
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=
|
|
the Exchange Rate in effect on the date such tender or exchange offer expires; |
|
|
|
|
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ER'
|
|
=
|
|
the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires; |
|
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|
|
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AC
|
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=
|
|
the aggregate value of all cash and any other consideration (as determined by the Board of Trustees)
paid or payable for shares purchased in such tender or exchange offer; |
|
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|
|
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OS0
|
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=
|
|
the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange
offer expires; |
B-27
|
|
|
|
|
OS'
|
|
=
|
|
the number of shares of Common Stock outstanding immediately after the date such tender or exchange
offer expires; and |
|
|
|
|
|
SP'
|
|
=
|
|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day
period commencing on the Trading Day next succeeding the date such tender or exchange offer expires, |
such adjustment to become effective immediately prior to the opening of business on the day
following the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer. If Parent is obligated to purchase shares pursuant to any such tender or exchange
offer, but Parent is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Exchange Rate shall again be
adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had
not been made or had only been made in respect of the purchases that had been effected. No
adjustment to the Exchange Rate will be made if the application of the foregoing formulae would
result in a decrease in the Exchange Rate.
(f) For purposes of this Section 8.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the shares of Common Stock (or
other applicable securities) are 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) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section 8.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York
Stock Exchange, the Company from time to time may increase the Exchange Rate by any amount for a
period of at least 20 days if the Board of Trustees determines that such increase would be in the
Company’s best interest. In addition, the Company may also (but is not required to) increase the
Exchange Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase
shares of Common Stock in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event. Whenever the Exchange Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Holder of each Note at his last address appearing
on the Security Register a notice of the increase at least five days prior to the date the
increased Exchange Rate takes effect, and such notice shall state the increased Exchange Rate and
the period during which it will be in effect.
(h) All calculations and other determinations under this Article VIII shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share of stock, as the case may be. No adjustment shall be made for Parent’s issuance of shares of
Common Stock or any securities convertible into or exchangeable for shares of Common Stock, or the
right to purchase shares of Common Stock or such convertible or exchangeable securities, other than
as provided in this Section 8.04. No adjustment shall be made to the Exchange Rate unless such
adjustment would require a change of at least 1% in the Exchange Rate then in effect at such time.
The Company shall carry forward any adjustments that are less than 1% of the Exchange Rate and make
such carried forward adjustments,
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regardless of whether the aggregate adjustment is less than 1% within one year of the first
such adjustment carried forward, upon a Fundamental Change, upon any call of the Notes for
redemption or upon maturity.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting
forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. The Trustee and Exchange Agent may conclusively rely on the accuracy of
the Exchange Rate adjustment provided by the Company. Unless and until a Responsible Officer of the
Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Exchange Rate setting
forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Exchange Rate to the Holder of each Note at his last
address appearing on the Security Register, within thirty (30) days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.
(j) For purposes of this Section 8.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of Parent but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Notwithstanding the foregoing provisions of this Section 8.04, in no event will the total
number of Common Stock issuable upon exchange exceed 6.5762 per $1,000 principal amount of Notes
(subject to adjustment in the same manner or as set forth in clauses (a), (b) and (c) of this
Section 8.04).
Section 8.05 Sufficient Shares to be Delivered. To the extent the Company elects to deliver
shares of Common Stock, and subject to Section 8.02(k), the Company shall provide, free from
preemptive rights, sufficient shares of Common Stock to provide for exchange of the Notes from time
to time as such Notes are presented for exchange.
Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely (i) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (ii) any consolidation, merger or
combination of Parent with another Person, or (iii) any sale or conveyance of all or substantially
all of the property and assets of Parent to any other Person, in either case as a result of which
holders of Common Stock shall be entitled to receive cash, securities or other property or assets
with respect to or in exchange for such shares of Common Stock (any such event a “Merger Event”),
then:
(a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which, as evidenced in an Opinion of Counsel delivered to the
Trustee, shall comply with the Trust Indenture Act as in force at the
B-29
date of execution of such supplemental indenture if such supplemental indenture is then
required to so comply) providing for the exchange and settlement of the Notes as set forth in this
Annex B of the Twelfth Supplemental Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Merger Event, the Reference Property
includes shares of stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change, consolidation,
merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by
such other corporation and shall contain such additional provisions to protect the interests of the
Holders of the Notes as the Board of Trustees shall reasonably consider necessary by reason of the
foregoing, including to the extent required by the Board of Trustees and practicable the provisions
providing for the repurchase rights set forth in Article IX herein.
In the event the Company shall execute a supplemental indenture pursuant to this Section 8.06,
the Company shall, in addition to the Officers’ Certificate and Opinion of Counsel required by
Section 102 of the Base Indenture, file with the Trustee an Officers’ Certificate briefly stating
the kind or amount of cash, securities or property or asset that will constitute the Reference
Property after any such Merger Event, any adjustment to be made with respect thereto, and the
Trustee shall promptly mail notice thereof to all Noteholders.
(b) Notwithstanding the provisions of Section 8.02(a) and Section 8.02(b), and subject to the
provisions of Section 8.01, at the effective time of such Merger Event, the right to exchange each
$1,000 principal amount of Notes will be changed to a right to exchange such Note by reference to
the kind and amount of cash, securities or other property or assets that a holder of a number of
shares of Common Stock equal to the Exchange Rate immediately prior to such transaction would have
owned or been entitled to receive (the “Reference Property”) such that from and after the effective
time of such transaction, a Noteholder will be entitled thereafter to exchange its Notes, subject
to the successor’s right to deliver cash, shares of Common Stock or common stock of such successor
or a combination of cash and shares of Common Stock as set forth in Section 8.02(b), into cash (up
to the aggregate principal amount thereof) and, in lieu of the shares of Common Stock otherwise
deliverable, the same type (and in the same proportion) of Reference Property, based on the Daily
Settlement Amounts of Reference Property in an amount equal to the applicable Exchange Rate, as
described under Section 8.02(b). For purposes of determining the constitution of Reference
Property, the type and amount of consideration that a holder of Common Stock would have been
entitled to in the case of reclassifications, consolidations, mergers, sales or conveyance of
assets or other transactions that cause the Common Stock to be converted into the right to receive
more than a single type of consideration (determined based in part upon any form of stockholder
election) will be deemed to be the weighted average of the types and amounts of consideration
received by the holders of shares of Common Stock that affirmatively make such an election. Parent
shall not become a party to any such transaction unless its terms are consistent with the
preceding. None of the foregoing provisions shall affect the right of a Holder of Notes to
exchange its Notes in accordance with the provisions of Article VIII hereof prior to the effective
date.
B-30
(c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Security Register, within thirty (30)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Section 8.07 Certain Covenants. The Company covenants that all shares of Common Stock
delivered upon exchange of Notes will be fully paid and non-assessable by Parent and free from all
taxes, liens and charges with respect to the issue thereof.
Section 8.08 Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at
any time be under any duty or responsibility to any Noteholder to determine the Exchange Rate or
whether any facts exist which may require any adjustment of the Exchange Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Exchange Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any
other Exchange Agent make no representations with respect thereto. Neither the Trustee nor any
Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any
shares of Common Stock or share certificates or other securities or property or cash upon the
surrender of any Note for the purpose of exchange or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Noteholders upon the
exchange of their Notes after any event referred to in such Section 8.06 or to any adjustment to be
made with respect thereto, but, subject to the provisions of Article Six of the Base Indenture, may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate with respect thereto.
Section 8.09 Notice to Holders Prior to Certain Actions.
In case:
(a) Parent shall declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Exchange Rate pursuant to Section 8.04; or
(b) Parent shall authorize the granting to all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other rights or warrants;
B-31
(c) of any reclassification of the Common Stock (other than a subdivision or combination of
its outstanding Common Stock, or a change in par value, or from par value to no par value, or from
no par value to par value), or of any consolidation or merger to which Parent is a party and for
which approval of any stockholders of Parent is required, or of the sale or transfer of all or
substantially all of the assets of Parent; or
(d) of the voluntary or involuntary dissolution, liquidation or winding-up of Parent,
the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Security Register as promptly as possible but in any event at least thirty
(30) days prior to the applicable date specified in clause (x) or (y) below, as the case may be, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.
Section 8.10 Stockholder Rights Plans. Upon exchange of the Notes, the Holders shall receive,
in addition to any shares of Common Stock issuable upon such exchange, the associated rights issued
under any future stockholder rights plan Parent adopts unless, prior to exchange, the rights have
separated from the shares of Common Stock, expired, terminated or been redeemed or converted in
accordance with such rights plan. If, and only if, the Holders receive rights under such
stockholder rights plans as described in the preceding sentence upon exchange of their Notes, then
no other adjustment pursuant to this Article VIII shall be made in connection with such stockholder
rights plans.
Section 8.11 Ownership Limit. Notwithstanding any other provision of this Annex B of the
Twelfth Supplemental Indenture or the Notes, no Holder of Notes (or beneficial owner of Notes)
shall be entitled to exchange such Notes for shares of Common Stock to the extent that receipt of
such shares would cause such Holder (or beneficial owner of Notes) (together with such Holder’s (or
beneficial owner’s) affiliates) to exceed the applicable ownership limit contained in the articles
of incorporation of Parent.
B-32
ARTICLE IX
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates.
(a) The provisions of Article Thirteen of the Base Indenture shall not be applicable to the
Notes.
(b) Each Noteholder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes or any portion thereof that is a multiple of $1,000 principal
amount, for cash on January 15, 2013, November 15, 2017, November 15, 2022, November 15, 2027 and
November 15, 2032 (each, a “Put Right Repurchase Date”) at a repurchase price per Note equal to
100% of the aggregate principal amount of the Notes being repurchased, together with any accrued
and unpaid interest up to, but not including, such Put Right Repurchase Date (the “Put Right
Repurchase Price”).
Repurchases of Notes by the Company pursuant to this Section 9.01 shall be made, at the option
of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by the
Holder of a written notice of purchase (a “Put Right Repurchase Notice”) in the form set
forth on the reverse of the Note at any time from the opening of business on the date that
is 25 Business Days prior to the applicable Put Right Repurchase Date until the close of
business on the fifth Business Day prior to such Put Right Repurchase Date stating:
(A) if certificated, the certificate numbers of the Notes to be delivered for
repurchase;
(B) the portion of the principal amount of the Notes to be repurchased, which must be
$1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased as of the applicable Put Right Repurchase Date
pursuant to the terms and conditions specified in the Notes and in this Annex B of the
Twelfth Supplemental Indenture, and
(ii) delivery of such Note to the Paying Agent prior to, on or after the Put Right
Repurchase Date (together with all necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by the Holder of the Put Right Repurchase
Price therefor, which shall be so paid pursuant to this Section 9.01 only if the Note so
delivered to the Paying Agent shall conform in all respects to the description thereof in
the related Put Right Repurchase Notice, as determined by the Company.
The Company shall repurchase from the Holder thereof, pursuant to this Section 9.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of
B-33
$1,000. Provisions of this Annex B of the Twelfth Supplemental Indenture that apply to the
repurchase of all of a Note also apply to the repurchase of such portion of such Note.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Put Right Repurchase Date and the time of delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Put Right Repurchase Notice or written notice of withdrawal thereof in
accordance with the provisions of Section 9.01(e).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(c) In connection with any purchase of Notes pursuant to this Section 9.01, the Company shall
give written notice of the Put Right Repurchase Date to the Holders (the “Company Put Right
Notice”).
The Company Put Right Notice shall be sent by first-class mail to the Trustee and to each
Holder (and to each beneficial owner as required by applicable law) that has delivered a Put Right
Repurchase Notice within ten Business Days of receipt of such Put Right Repurchase Notice, or, if a
shorter period, at least two Business Days prior to any Put Right Repurchase Date (the “Company Put
Right Notice Date”). Each Company Put Right Notice shall include a form of Put Right Repurchase
Notice to be completed by a Noteholder and shall state:
(i) the Put Right Repurchase Price and the Exchange Price;
(ii) the name and address of the Paying Agent and the Exchange Agent;
(iii) that Notes as to which a Put Right Repurchase Notice has been given may be
exchanged in accordance with Article VIII hereof only if the applicable Put Right Repurchase
Notice has been withdrawn in accordance with the terms of this Annex B of the Twelfth
Supplemental Indenture;
(iv) that Notes must be surrendered to the Paying Agent to collect payment;
(v) that the Put Right Repurchase Price for any Note as to which a Put Right Repurchase
Notice has been given and not withdrawn will be paid promptly
B-34
following the later of the Put Right Repurchase Date and the time of surrender of such
Note as described in subclause (iv) above;
(vi) the procedures the Holder must follow to exercise rights under this Section and a
brief description of those rights;
(vii) briefly, the exchange rights of the Notes;
(viii) the procedures for withdrawing a Put Right Repurchase Notice (including pursuant
to the terms of Section 9.01(e));
(ix) that, unless the Company defaults in making payment on Notes for which a Put Right
Repurchase Notice has been submitted, interest on the Notes in respect of which a Put Right
Repurchase Notice has been delivered and not withdrawn will cease to accrue on the Put Right
Repurchase Date; and
(x) the CUSIP number of the Notes.
If any of the Notes are to be redeemed in the form of a Global Note, the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
redemptions.
At the Company’s request, the Trustee shall give such Company Put Right Notice in the
Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of
such Company Put Right Notice shall be prepared by the Company.
(d) Upon receipt by the Trustee (or other Paying Agent appointed by the Company) of the Put
Right Repurchase Notice specified in Section 9.01(a), the Holder of the Note in respect of which
such Put Right Repurchase Notice was given shall (unless such Put Right Repurchase Notice is
withdrawn as specified in Section 9.01(e)) thereafter be entitled to receive solely the Put Right
Repurchase Price with respect to such Note. Such Put Right Repurchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the
Put Right Repurchase Date with respect to such Note (provided the conditions in Section 9.01(a)
have been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 9.01(a). Notes in respect of which a Put Right
Repurchase Notice has been given by the Holder thereof may not be exchanged pursuant to Article
VIII hereof on or after the date of the delivery of such Put Right Repurchase Notice, unless such
Put Right Repurchase Notice has first been validly withdrawn as specified in Section 9.01(e).
(e) A Put Right Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Put Right Repurchase Notice at
any time prior to 10:00 A.M. New York City time on the fourth Business Day prior to the Put Right
Repurchase Date specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes,
B-35
(ii) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted, and
(iii) the principal amount, if any, of such Notes that remains subject to the original
Put Right Repurchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
A written notice of withdrawal of a Put Right Repurchase Notice shall be in the form set forth
in the preceding paragraph.
Upon receipt of a written notice of withdrawal, the Paying Agent shall promptly return to the
Holders thereof any Notes in respect of which a Put Right Repurchase Notice has been withdrawn in
accordance with the provisions of Section 9.01(f).
(f) There shall be no repurchase of any Notes pursuant to this Section 9.01 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of
the required Put Right Repurchase Notice) and is continuing an Event of Default with respect to
Notes (other than a default in the payment of the Put Right Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Notes held by
it during the continuance of an Event of Default with respect to Notes (other than a default in the
payment of the Put Right Repurchase Price with respect to such Notes), in which case, upon such
return, the Put Right Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
(g) Prior to 11:00 a.m. (local time in The City of New York) on the Put Right Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance
with the terms of the Base Indenture as modified by this Annex B of the Twelfth Supplemental
Indenture) an amount (in immediately available funds if deposited on such Business Day) sufficient
to pay the aggregate Put Right Repurchase Price of all the Notes or portions thereof which are to
be purchased as of the Put Right Repurchase Date. The manner in which the deposit required by this
Section 9.01(g) is made by the Company shall be at the option of the Company; provided that such
deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Put Right Repurchase Date.
If the Trustee (or other Paying Agent appointed by the Company) holds, in accordance with the
terms hereof, money sufficient to pay the Put Right Repurchase Price of any Note, then, on the Put
Right Repurchase Date, such Note will cease to be Outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Put Right Repurchase Price as
aforesaid).
To the extent that the aggregate amount of cash deposited by the Company pursuant to this
Section 9.01(g) exceeds the aggregate Put Right Repurchase Price of the Notes or portions thereof
that the Company is obligated to purchase, then promptly after the Put Right Xxxxxxxxxx
X-00
Date the Trustee or a Paying Agent, as the case may be, shall return any such excess cash to
the Company.
Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Noteholder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20)
Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).
Repurchases of Notes under this Section 9.02 shall be made, at the option of the Holder
thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth on the reverse of the Note prior to the close of business on the Fundamental
Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements) at the Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the
City of Boston, such delivery being a condition to receipt by the Holder of the Fundamental
Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price
shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee
(or other Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice.
The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be
$1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and this Annex B of the Twelfth Supplemental Indenture.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.02
shall be consummated by the delivery of the consideration to be received by the Holder
B-37
promptly following the later of the Fundamental Change Repurchase Date and the time of the
book-entry transfer or delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 9.02(c).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(b) On or before the twentieth day after the occurrence of any Fundamental Change, the Company
shall provide to all Holders of record of the Notes and the Trustee and Paying Agent a notice (the
“Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the
repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be by
first class mail. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall publish a notice containing the information included therein once in a newspaper of
general circulation in The City of New York or publish such information on the Company’s website or
through such other public medium as the Company may use at such time.
Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) that the Holder must exercise the repurchase right on or prior to the close of
business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Exchange Agent;
(vii) the applicable Exchange Rate and any adjustments to the applicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has
been delivered by a Holder may be exchanged only if the Holder
B-38
withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this
Annex B of the Twelfth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their
Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Trustee and Paying Agent in accordance with the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes; and
(iii) the principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000;
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the second Business Day
following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or
other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this
Annex B of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the
Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the
Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made
promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note
(provided the Holder has satisfied the conditions to the payment of the Fundamental Change
Repurchase Price in Section 9.02), and (y) the time of book-entry transfer or the delivery of such
Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the
manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such
Notes entitled thereto as they shall appear in the Security Register, provided, however, that
payments to the Depositary shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon
written demand by the Company, return to the Company any funds in excess of the Fundamental Change
Repurchase Price.
B-39
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or
securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or
portions thereof that are to be purchased as of the second Business Day following the Fundamental
Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes
will cease to be Outstanding, (ii) interest will cease to accrue on such Notes, and (iii) all other
rights of the Holders of such Notes will terminate, whether or not book-entry transfer of the Notes
has been made or the Notes have been delivered to the Trustee or Paying Agent, other than the right
to receive the Fundamental Change Repurchase Price upon delivery of the Notes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Ratification of Base Indenture. Except as expressly modified or amended hereby,
the Base Indenture continues in full force and effect and is in all respects confirmed, ratified
and preserved and the provisions thereof shall be applicable to the Notes and this Annex B of the
Twelfth Supplemental Indenture. Without limiting the generality of the foregoing, the Notes shall
have the benefit of Article Three of the Second Supplemental Indenture to the Base Indenture in
accordance with its terms.
Section 10.02 Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Annex B of the Twelfth Supplemental
Indenture shall bind its successors and assigns whether so expressed or not.
Section 10.03 Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Annex B of the Twelfth Supplemental Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation or entity
that shall at the time be the lawful sole successor of the Company.
Section 10.04 Addresses for Notices, Etc. Any notice or demand which by any provision of this
Annex B of the Twelfth Supplemental Indenture is required or permitted to be given or served by the
Trustee or by the Noteholders on the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is filed by the Company
with the Trustee) to ProLogis, 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box addressed to U.S. Bank
National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Services/ProLogis.
The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.
B-40
Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Security Register and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
Section 10.05 Governing Law. THIS ANNEX B OF THE TWELFTH SUPPLEMENTAL INDENTURE AND EACH NOTE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED THEREIN.
Section 10.06 Non-Business Day. Section 113 of the Base Indenture shall also apply to any
Fundamental Change Purchase Date, Put Right Repurchase Date or Exchange Date in respect of the
Notes.
Section 10.07 Benefits of Indenture. Nothing in this Annex B of the Twelfth Supplemental
Indenture or in the Notes, expressed or implied, shall give to any person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Security Registrar and their successors
hereunder, the Noteholders, any benefit or any legal or equitable right, remedy or claim under this
Annex B of the Twelfth Supplemental Indenture.
Section 10.08 Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Annex B of the Twelfth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.09 Execution in Counterparts. This Annex B of the Twelfth Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 10.10 Trustee. The Trustee makes no representations as to the validity or sufficiency
of this Annex B of the Twelfth Supplemental Indenture. The statements and recitals herein are
deemed to be those of the Company and not of the Trustee.
Section 10.11 Further Instruments and Acts. Upon request of the Trustee, the Company and
Parent 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 Annex B of the
Twelfth Supplemental Indenture.
Section 10.12 Waiver of Jury Trial. EACH OF THE COMPANY, PARENT AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
B-41
Section 10.13 Force Majeure. In no event shall the Trustee or Exchange Agent be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
B-42
SCHEDULE A
Share Price
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Effective Date |
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$153.07 |
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$156.81 |
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$168.01 |
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$179.21 |
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$190.41 |
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$201.61 |
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$212.81 |
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$224.01 |
|
$235.22 |
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$246.42 |
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$257.62 |
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$268.82 |
January 15, 2012
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1.0888 |
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0.9285 |
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|
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0.6389 |
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0.4241 |
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0.2694 |
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0.1613 |
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|
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0.0884 |
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|
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0.0409 |
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|
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0.0111 |
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|
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0.0000 |
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0.0000 |
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0.0000 |
|
January 15, 2013
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|
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1.0888 |
|
|
|
0.9054 |
|
|
|
0.4821 |
|
|
|
0.1232 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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B-Sch A-1
EXHIBIT A
[FORM OF FACE OF NOTE]
[Include only for Global Notes]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Include for all Notes]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT
(“OID”) FOR U.S. FEDERAL INCOME TAX PURPOSES. HOLDERS OF SECURITIES MAY CONTACT XXXX XXXXXXXX,
SENIOR VICE PRESIDENT, AT (000) 000-0000 TO REQUEST INFORMATION REGARDING THE ISSUE PRICE, THE
AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE SECURITIES FOR U.S. FEDERAL INCOME
TAX PURPOSES.
B-Exh A-1
PROLOGIS
1.875% Convertible Senior Notes due 2037
CUSIP No. 743410 AR3
PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.], or registered assigns, the principal sum of [ ] ($[ ]) or
such other principal amount as shall be set forth on the Schedule I hereto on November 15, 2037.
This Security shall bear interest at the rate of 1.875% per year from November 8, 2007, or
from the most recent date to which interest had been paid or provided. Interest is payable
semi-annually in arrears on each May 15 and November 15, commencing May 15, 2008, to Holders of
record at the close of business on the preceding May 1 and November 1, respectively. Interest
payable on each Interest Payment Date shall equal the amount of interest accrued from, and
including the immediately preceding Interest Payment Date (or from and including November 8, 2007,
if no interest has been paid hereon) to but excluding such Interest Payment Date.
Payment of the principal and interest, on this Security will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, City of New York or the
City of Boston, or elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest, may be made by
(i) check mailed to the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) transfer to an account of the Person entitled thereto located inside the
United States; provided further, however, that, with respect to any Holder of Securities with an
aggregate principal amount in excess of $1,000,000, at the application of such Holder in writing to
the Company, interest on such Holder’s Securities shall be paid by wire transfer in immediately
available funds to such Holder’s account in the United States supplied by such Holder from time to
time to the Trustee and Paying Agent (if different from the Trustee) not later than the applicable
record date.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash, Common Shares of the Company or a combination of cash and Common Shares on
the terms and subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.
B-Exh A-2
This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
B-Exh A-3
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the
undersigned officer.
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PROLOGIS
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By: |
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Name: |
[_____________] |
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Title: |
[_____________] |
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Attest |
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By: |
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Name: [_________]
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Title: [________] |
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Dated: [__________], 20[___]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as successor trustee
B-Exh A-4
[FORM OF REVERSE OF NOTE]
PROLOGIS
1.875% Convertible Senior Notes due 2037
This Security is one of a duly authorized issue of Securities of the Company, designated as
its 1.875% Convertible Senior Notes due 2037 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005 and the Fifth Supplemental
Indenture, dated as of November 8, 2007 (as so supplemented, herein called the “Indenture”),
between the Company and U.S. Bank National Association (herein called the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. Additional Securities may be issued in an unlimited
aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
Prior to January 15, 2013, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Fifth
Supplemental Indenture. Subject to the terms and conditions of the Indenture, on or after January
15, 2013, the Company shall have the right to redeem the Securities, in whole or from time to time
in part, at a price equal to 100% of the principal amount of the Securities being redeemed, plus
accrued and unpaid interest. Any such redemption shall be upon at least 30 days’ and no more than
60 days’ notice to Holders of the Securities.
Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase Price,
the Redemption Price and the principal amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in respect of the
Security. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall make any of the
changes set forth in Section 6.02 of the Fifth Supplemental Indenture, without the consent of
B-Exh A-5
each Holder of an Outstanding Security affected thereby. It is also provided in the Indenture that,
prior to any declaration accelerating the maturity of the Securities, the Holders of a majority in
principal amount of the Securities at the time Outstanding may on behalf of the Holders of all of
the Securities waive any past default or Event of Default under the Indenture and its consequences
except as provided in the Indenture. Any such consent or waiver by the Holder of this Security
(unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Security and any Securities which may be issued in
exchange or substitution hereof, irrespective of whether or not any notation thereof is made upon
this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.
The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred to
on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.
The Securities are not subject to redemption through the operation of any sinking fund.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.
On January 15, 2013, November 15, 2017, November 15, 2022, November 15, 2027 and November 15,
2032, the Holder has the right, at such Holder’s option, to require the Company to repurchase all
of such Holder’s Securities or any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) at a price equal to 100% of the principal amount of the Securities such Holder
elects to require the Company to repurchase, together with accrued and unpaid interest to but
excluding the Put Right Repurchase Date. Holders shall submit their Securities for repurchase to
the Paying Agent at any time from the opening of business on the date that is 25 Business Days
prior to the applicable Put Right Repurchase Date until the close of business on the fifth Business
Day prior to the Put Right Repurchase Date.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, on
and after October 15, 2012, or earlier upon the occurrence of certain conditions specified in
B-Exh A-6
the Indenture and prior to the close of business on the Trading Day immediately preceding the Maturity
Date, to convert any Securities or portion thereof which is $1,000 or an integral multiple thereof,
into cash, Common Shares or a combination of cash and Common Shares, at the option of the Company
as provided in the Fifth Supplemental Indenture, in each case at the Conversion Rate specified in
the Indenture, as adjusted from time to time as provided in the Indenture, upon surrender of this
Security, together with a Notice of Conversion, a form of which is attached to this Security, as
provided in the Indenture and this Security, to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, City of New York or the City of Boston or
elsewhere as provided in the Indenture, and, unless the shares issuable on conversion are to be
issued in the same name as this Security, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the Holder or by his duly authorized
attorney. The initial Conversion Rate is 12.1957 shares for each $1,000 principal amount of
Securities. No fractional Common Shares will be issued upon any conversion, but an adjustment in
cash will be paid to the Holder, as provided in the Indenture, in respect of any fraction of a
share which would otherwise be issuable upon the surrender of any Security or Securities for
conversion. No adjustment shall be made for dividends or any shares issued upon conversion of such
Security except as provided in the Indenture.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York or the City of Boston, a new Security or
Securities of authorized denominations for an equal aggregate principal amount will be issued to
the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessments or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
B-Exh A-7
Terms used in this Security and defined in the Indenture are used herein as therein defined.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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).
B-Exh A-8
Schedule I
PROLOGIS
1.875% Convertible Senior Notes due 2037
No.
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Notation Explaining |
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Authorized Signature |
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Principal Amount |
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of Trustee or |
Date |
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Principal Amount |
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Recorded |
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Custodian |
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B-Exh A-9
Schedule I
FORM OF CONVERSION NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into cash, Common Shares, or a combination of cash and shares of Common Shares,
in accordance with the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon such conversion, if any, together with any check in payment of
the cash in respect of the remaining Conversion Obligation (as defined in the Indenture) and for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Security not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Security.
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions)
with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities
to be delivered, other than to and in the name of
the registered holder.
B-Exh A-10
Fill in for registration of shares if to be issued, and
Securities if to be
delivered, other than to and in
the name of the registered holder:
(Name)
(Street Address)
(City, State and Zip Code)
Please print name and address
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Principal amount to be converted (if less
than all): $___,000 |
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Social Security or Other Taxpayer Identification Number |
B-Exh A-11
FORM OF PUT RIGHT REPURCHASE NOTICE
To: PROLOGIS
The undersigned hereby requests and instructs the Company to repay the entire principal amount
of this Security, or a portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, on ___in accordance with the terms of the Indenture referred to in this
Security at the Put Right Repurchase Price, to the registered holder hereof.
Dated:
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Signature(s) |
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Social Security or Other Taxpayer Identification
Number Principal amount
to be repaid (if less than all): $___,000 NOTICE: |
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The above signatures of the holder(s) hereof
must correspond with the name as written
upon the face of the Security in every
particular
without alteration or enlargement or any
change whatever. |
B-Exh A-12
FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis, to be known as Prologis (the “Company”), as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, in accordance with the terms of the Indenture referred to in
this Security, to the registered holder hereof.
Dated:
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Signature(s) |
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Social Security or Other Taxpayer
Identification Number Principal amount to
be repaid (if less than all): $___,000 NOTICE: |
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The above signatures of the holder(s) hereof
must correspond with the name as written
upon the face of the Security in every
particular
without alteration or enlargement or any
change whatever. |
B-Exh A-13
FORM OF ASSIGNMENT AND TRANSFER
For value received hereby sell(s), assign(s) and transfer(s) unto
(Please insert social security or Taxpayer Identification Number of assignee) the
within Security, and hereby irrevocably constitutes and appoints attorney to
transfer the said Security on the books of the Company, with full power of substitution in the
premises.
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit
unions) with membership in an approved
signature guarantee medallion program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934, as amended, if Common Shares are
to be issued, or Securities to be delivered,
other than to and in the name of the
registered holder.
NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change, the Put Right Notice, or the assignment must correspond with the name as written upon the
face of the Security in every particular without alteration or enlargement or any change whatever.
B-Exh A-14
ANNEX C
2.625% Convertible Senior Notes due 2038
Originally issued May 7, 2008
TABLE OF CONTENTS
(continued)
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ARTICLE I DEFINITIONS |
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1 |
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Section 1.01 Relation to Base Indenture |
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Section 1.02 Definitions |
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1 |
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ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES |
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Section 2.01 Designation and Amount |
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Section 2.02 Form of Notes |
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Section 2.03 Date and Denomination of Notes; Payments of Interest |
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Section 2.04 Intentionally Omitted |
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Section 2.05 Execution, Authentication and Delivery of Notes |
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Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary |
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Section 2.07 Additional Notes; Repurchases |
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Section 2.08 No Sinking Fund |
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Section 2.09 Ranking |
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ARTICLE III REDEMPTION |
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Section 3.01 Right to Redeem |
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Section 3.02 Selection of Notes to be Redeemed |
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Section 3.03 Notice of Redemption |
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ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY |
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Section 4.01 Payment of Principal and Interest |
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Section 4.02 Maintenance of Office or Agency for Exchange Agent |
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Section 4.03 Intentionally Omitted |
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Section 4.04 Intentionally Omitted |
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Section 4.05 Exclusion of Certain Provisions From Base Indenture |
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ARTICLE V DEFAULTS AND REMEDIES |
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Section 5.01 Events of Default |
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Section 5.02 Article Five of Base Indenture |
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ARTICLE VI SUPPLEMENTAL INDENTURES |
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Section 6.01 Supplemental Indentures Without Consent of Noteholders |
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Section 6.02 Modification and Amendment with Consent of Noteholders |
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Section 6.03 Effect of Supplemental Indentures |
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13 |
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C-i
TABLE OF CONTENTS
(continued)
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Section 6.04 Article Nine of Base Indenture |
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ARTICLE VII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE |
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Section 7.01 Company May Consolidate, Etc. on Certain Terms |
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ARTICLE VIII EXCHANGE OF NOTES |
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Section 8.01 Exchange Privilege |
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Section 8.02 Exchange Procedures |
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Section 8.03 Reserved |
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Section 8.04 Adjustment of Exchange Rate |
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Section 8.05 Sufficient Shares to be Delivered |
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Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale |
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Section 8.07 Certain Covenants |
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Section 8.08 Responsibility of Trustee |
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Section 8.09 Notice to Holders Prior to Certain Actions |
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Section 8.10 Stockholder Rights Plans |
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Section 8.11 Ownership Limit |
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ARTICLE IX REPURCHASE OF NOTES AT OPTION OF HOLDERS |
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Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates |
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Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change |
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ARTICLE X MISCELLANEOUS PROVISIONS |
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Section 10.01 Ratification of Base Indenture |
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Section 10.02 Provisions Binding on Company’s Successors |
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Section 10.03 Official Acts by Successor Corporation |
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Section 10.04 Addresses for Notices, Etc |
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Section 10.05 Governing Law |
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Section 10.06 Non-Business Day |
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Section 10.07 Benefits of Indenture |
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Section 10.08 Table of Contents, Headings, Etc |
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Section 10.09 Execution in Counterparts |
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Section 10.10 Trustee |
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Section 10.11 Further Instruments and Acts |
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C-ii
TABLE OF CONTENTS
(continued)
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Section 10.12 Waiver of Jury Trial |
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Section 10.13 Force Majeure |
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42 |
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C-iii
2.625% Convertible Senior Notes due 2038
ARTICLE I
DEFINITIONS
Section 1.01 Relation to Base Indenture. This Annex C to the Twelfth Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02 Definitions. For all purposes of this Annex C of the Twelfth Supplemental
Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture;
(b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;
(c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Annex C of the Twelfth Supplemental Indenture; and
(d) All other terms used in this Annex C of the Twelfth Supplemental Indenture, which are
defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires) shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of the execution of this Annex C of the Twelfth Supplemental Indenture. The
words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Annex C of the
Twelfth Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the singular.
“Additional Shares” shall have the meaning specified in Section 8.01(g).
“Board of Directors” means the board of directors of Parent or, if Parent shall be succeeded
by a corporation pursuant to Article VII, the board of directors of Parent’s corporate successor or
any committee of such applicable board of directors duly authorized to act generally or in any
particular respect hereunder.
“Board of Trustees” means the board of trustees of the Company or, if the Company shall be
succeeded by a corporation pursuant to Article VII, the board of trustees or directors of the
Company’s corporate successor or any committee of such applicable board duly authorized to act
generally or in any particular respect hereunder.
“Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which
banks in The City of New York or The City of Boston are not required or authorized by law or
executive order to be closed.
C-1
“cash percentage” shall have the meaning specified in Section 8.02(a)(4).
“cash percentage notice” shall have the meaning specified in Section 8.02(a)(4).
“close of business” means 5:00 p.m. (New York City time).
“Change of Control” shall be deemed to occur upon the consummation of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with which more than
50% of the shares of Common Stock are exchanged for, exchanged into, acquired for or constitutes
solely the right to receive, consideration which is not at least 90% common stock (or American
Depositary Shares representing shares of common stock) that is: (a) listed on, or immediately after
the consummation of such transaction or event, will be listed on, a United States national
securities exchange or (b) approved, or immediately after such transaction or event will be
approved, for listing or quotation on any United States system of automated dissemination of
quotations of securities prices.
“Common Stock” means, subject to Section 8.06, the common stock of Parent, par value $0.01 per
share, at the date of the Twelfth Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of Parent and that are not subject to redemption by Parent;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
“Company” means ProLogis (to be known as Prologis), a Maryland real estate investment trust,
and subject to the provisions of Article VII, shall include its successors and assigns.
“Company Put Right Notice” shall have the meaning specified in Section 9.01(c).
“Company Put Right Notice Date” shall have the meaning specified in Section 9.01(c).
“Daily Exchange Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, one-twentieth (1/20) of the product of (a) the applicable Exchange Rate and (b)
the Daily VWAP of the Common Stock (or the Reference Property, if applicable) on such day.
“Daily Settlement Amount,” for each of the 20 Trading Days during the Observation Period,
shall consist of:
(i) cash equal to the lesser of $50 and the Daily Exchange Value relating to such day; and
(ii) if such Daily Exchange Value exceeds $50, a number of shares of Common Stock equal to (A)
the difference between such Daily Exchange Value and $50, divided by (B) the
C-2
Daily VWAP of the shares of Common Stock for such day, subject to the Company’s right to
deliver cash in lieu of all or a portion of such shares of Common Stock pursuant to Section
8.02(a)(4) hereof.
“Daily VWAP” for the Common Stock means, for each of the 20 consecutive Trading Days during
the Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page PLD <equity> AQR in respect of the period from 9:30 a.m.
to 4:00 p.m. (New York City time) on such Trading Day (or if such volume-weighted average price is
unavailable, the market value of one share of Common Stock on such Trading Day as the Board of
Trustees determines in good faith using a volume-weighted method).
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in the Base Indenture as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Annex C of the Twelfth Supplemental Indenture, and thereafter, “Depositary” shall mean or
include such successor.
“Distributed Property” shall have the meaning specified in Section 8.04(c).
“Dividend Threshold Amount” shall have the meaning specified in Section 8.04(d).
“Effective Date” shall have the meaning specified in Section 8.01(g)(1).
“Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.
“Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other equity security
trade on the applicable exchange or in the applicable market, regular way, without the right to
receive such issuance or distribution.
“Ex-Dividend Date” means, with respect to Section 8.01(e), the first date upon which a sale of
the shares of Common Stock does not automatically transfer the right to receive the relevant
dividend from the seller of the shares of Common Stock to its buyer.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Agent” shall mean the Trustee or any successor office or agency where the Notes may
be surrendered for exchange.
“Exchange Date” shall have the meaning specified in Section 8.02(c).
“Exchange Obligation” shall have the meaning specified in Section 8.01(a).
“Exchange Price” means as of any date $1,000 divided by the Exchange Rate as of such date.
C-3
“Exchange Rate” shall have the meaning specified in Section 8.01(a).
“Exchange Trigger Price” shall have the meaning specified in Section 8.01(c).
“Fundamental Change” means a Change of Control or a Termination of Trading.
“Fundamental Change Company Notice” shall have the meaning specified in Section 9.02(b).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 9.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 9.02(a)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 9.02(a).
“Global Note” shall have the meaning specified in Section 2.06(e).
“Independent Securities Dealer” shall have the meaning specified in Section 8.01(b).
“interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes.
“Interest Payment Date” means May 15 and November 15 of each year, beginning on November 15,
2008.
“Last Reported Sale Price” means, with respect to the shares of Common Stock or any other
security for which a Last Reported Sale Price must be determined, on any date, the closing sale
price per share of the Common Stock or unit of such other security (or, if no closing sale price is
reported, the average of the last bid and last ask prices or, if more than one in either case, the
average of the average last bid and the average last ask prices) on such date as reported in
composite transactions for the principal U.S. securities exchange on which the Common Stock or such
other security is traded. If the Common Stock or such other security is not listed for trading on
a United States national or regional securities exchange on the relevant date, the Last Reported
Sale Price shall be the last quoted bid price per share of Common Stock or such other security in
the over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. If the shares of Common Stock or such other security are not so quoted, the
Last Reported Sale Price shall be the average of the mid-point of the last bid and ask prices per
share of Common Stock or such other security on the relevant date from each of at least three
nationally recognized independent investment banking firms selected from time to time by the Board
of Trustees for that purpose. The Last Reported Sale Price shall be determined without reference
to extended or after-hours trading.
“Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits
C-4
permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts
or future contracts relating to the Common Stock, and such suspension or limitation occurs or
exists at any time before 1:00 p.m. (New York City time) on such day.
“Maturity Date” means May 15, 2038.
“Measurement Period” shall have the meaning specified in Section 8.01(b).
“Merger Event” shall have the meaning specified in Section 8.06.
“Noteholder” or “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), means any person in whose name at the time a particular
Note is registered on the Security Register.
“Notice of Exchange” shall have the meaning specified in Section 8.02(c).
“Observation Period” means the 20 consecutive Trading Day period beginning on and including
the second Trading Day after the related Exchange Date in respect of such Note.
“opening of business” means 9:00 a.m. (New York City time).
“Parent” means Prologis, Inc., a Maryland corporation and, subject to the provisions of
Article VII, shall include its successors and assigns.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306 of the Base Indenture in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
“Put Right Repurchase Date” shall have the meaning assigned to it in Section 9.01(b).
“Put Right Repurchase Notice” shall have the meaning assigned to it in Section 9.01(b)(i).
“Put Right Repurchase Price” shall have the meaning assigned to it in Section 9.01(b).
“Record Date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.
“Reference Property” shall have the meaning specified in Section 8.06(b).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Settlement Amount” shall have the meaning specified in Section 8.02(a)(1).
“Spin-Off” shall have the meaning specified in Section 8.04(c).
C-5
“Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Exchange Rate as set forth in
Section 8.01(e)(ii) hereof, which shall be equal to (i) if holders of shares of Common Stock
receive only cash in such Fundamental Change, the cash amount paid per share of Common Stock and
(ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the
five consecutive Trading Day period ending on the Trading Day preceding the Effective Date of the
Fundamental Change.
“Termination of Trading” shall be deemed to occur if the Common Stock, or any Common Stock (or
American Depositary Receipts in respect of Common Stock) into which the Notes are exchangeable
pursuant to the terms of this Annex C of the Twelfth Supplemental Indenture, are not listed for
trading on any of the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select
Market (or any of their respective successors).
“Trading Day” means a day during which (i) trading in Common Stock generally occurs, (ii)
there is no Market Disruption Event and (iii) a Last Reported Sale Price of the Common Stock (other
than a Last Reported Sale Price referred to in the next to last sentence of such definition) is
available for such day; provided that if the shares of Common Stock are not admitted for trading or
quotation on or by any exchange, bureau or other organization referred to in the definition of Last
Reported Sale Price (excluding the next to last sentence of that definition), Trading Day shall
mean any Business Day.
“Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Company and delivered to the Trustee for $2.0
million principal amount of Notes 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, 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, that one bid shall be used. If the Company cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the Exchange Rate.
“Trigger Event” shall have the meaning specified in Section 8.04(c).
“Underwriters” means Xxxxxxx, Xxxxx & Co., Bank of America Securities LLC and Citigroup Global
Markets Inc.
“Underwriting Agreement” means that certain Underwriting Agreement relating to the Notes,
dated May 1, 2008, between the Company and the Underwriters.
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ARTICLE II
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “2.625% Convertible
Senior Notes due 2038.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Annex C of the Twelfth Supplemental Indenture is initially limited to
$550,000,000, subject to Section 2.07 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section
2.06, Section 8.02 and Section 9.02 hereof and Section 306 and Section 906 of to the Base
Indenture.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the form set forth in Exhibit A.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Annex C of the Twelfth Supplemental Indenture, or as may be required by the Depositary, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation system on which the
Notes may be listed or designated for issuance, or to conform to usage or to indicate any special
limitations or restrictions to which any particular Notes are subject.
A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this
Annex C of the Twelfth Supplemental Indenture. Payment of principal and accrued and unpaid
interest on a Global Note shall be made to the Holder of such Note on the date of payment, unless a
Record Date or other means of determining Holders eligible to receive payment is provided for
herein.
The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Annex C of
the Twelfth Supplemental Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Annex C of the Twelfth Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
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integral multiples thereof. Each Note shall be dated the date of its authentication and shall
bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York or the City of Boston, which shall initially be an office or agency of
the Trustee. The Company shall pay interest (i) on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Security Register (or upon
written application by such Person to the Security Registrar not later than the relevant record
date, by wire transfer in immediately available funds to such Person’s account within the United
States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000)
or (ii) on any Global Note by wire transfer of immediately available funds to the account of the
Depositary or its nominee. The term “Record Date” with respect to any Interest Payment Date shall
mean the May 1 or November 1 preceding the applicable May 15 or November 15 Interest Payment Date,
respectively.
Section 2.04 Intentionally Omitted.
Section 2.05 Execution, Authentication and Delivery of Notes. Section 303 of the Base
Indenture shall be applicable to the Notes.
Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.
(a) The Company shall provide for the registration of the Notes and of transfers of the Notes
in the Security Register. Upon surrender for registration of transfer of any Note to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.
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No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required
to exchange or register a transfer of (a) any Notes surrendered for exchange or, if a portion of
any Note is surrendered for exchange, such portion thereof surrendered for exchange or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article IX hereof.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Annex C of the Twelfth Supplemental Indenture shall be the valid, binding and legal
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Annex C of the Twelfth Supplemental Indenture as the Notes surrendered upon such registration of
transfer or exchange.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or under applicable law
with respect to any transfer of any interest in any Note 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 instrument, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note, which does not involve the
issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Annex C of the Twelfth Supplemental Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary therefor.
Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms
and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate
principal amount, which will form the same series with the Notes initially issued hereunder,
provided that no such additional Notes may be issued unless fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes. The Company may also from time to time
repurchase the Notes in open market purchases by tender at any price or by private agreement
without prior notice to Noteholders.
Section 2.08 No Sinking Fund. The provisions of Article Twelve of the Base Indenture shall
not be applicable to the Notes. No sinking fund is provided for the Notes.
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Section 2.09 Ranking. The Notes constitute a senior general obligation of the Company,
ranking equally with other existing and future senior and unsubordinated indebtedness of the
Company and ranking senior in right of payment to any future indebtedness of the Company that is
expressly made subordinate to the Notes by the terms of such indebtedness.
ARTICLE III
REDEMPTION
Section 3.01 Right to Redeem.
(a) Notwithstanding any provision of the Base Indenture, as modified by this Annex C of the
Twelfth Supplemental Indenture, to the contrary, the Company may redeem the Notes prior to May 15,
2038, in whole, in order to preserve Parent’s status as a real estate investment trust under the
Code.
(b) Except as provided in Section 3.01(a), the Company may not redeem the Notes prior to May
20, 2013. On or after May 20, 2013, the Company, at its option, may redeem the Notes from time to
time in whole or in part.
(c) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest; provided, however, that the
Company may deduct and withhold from such Redemption Price any amount required to be deducted and
withheld under applicable law.
Section 3.02 Selection of Notes to be Redeemed.
(a) The provisions of Section 1103 of the Base Indenture shall govern the selection of Notes
to be redeemed by the Trustee provided, however, that if less than all of the Notes are to be
redeemed, the Trustee shall make the selection from the Notes of that series Outstanding and not
previously called for redemption, by lot, or in its discretion, on a pro rata basis.
(b) If any Note selected for partial redemption is exchanged in part before termination of the
exchange right with respect to the portion of the Note so selected, the exchanged portion of such
Note shall be deemed to be part of the portion selected for redemption. Notes which have been
exchanged subsequent to the Trustee commencing selection of Notes to be redeemed but prior to
redemption of such Notes shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 3.03 Notice of Redemption. The provisions of Section 1104 of the Base Indenture shall
govern notices of redemption of the Notes; provided, however, that in addition to the information
specified in Section 1104 of the Base Indenture, notices of redemption of the Notes shall also
state:
(a) the then-current Exchange Price;
(b) the name and address of the Exchange Agent;
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(c) that Holders who wish to exchange Notes must surrender such Notes for exchange no later
than the close of business on the second Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth herein; and
(d) whether the Company will satisfy its Exchange Obligation with respect to any Notes called
for redemption that are surrendered for exchange in cash, shares of Common Stock or both as
provided herein; provided that the Company may not provide notice of a redemption of Notes at the
Company’s option that specifies that the Company will settle exchanges of Notes prior to such
redemption in cash and shares of Common Stock unless, at the time of such notice, the Company has
available to it a sufficient number of authorized shares of Common Stock to satisfy its Exchange
Obligation in respect of the Notes to be redeemed.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest.
(a) Sections 307 and 1001 of the Base Indenture shall apply to the Notes; provided, however,
that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at
the application of such Holder in writing to the Security Registrar not later than the relevant
record date, accrued and unpaid interest on such Holder’s Notes shall be paid by wire transfer in
immediately available funds to such Holder’s account in the United States supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from Trustee); provided further
that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time to time.
(b) Except as otherwise provided in this Section 4.01(b), a Holder of any Notes at the close
of business on a Record Date shall be entitled to receive interest on such Notes on the
corresponding Interest Payment Date. A Holder of any Notes as of a Record Date that are exchanged
after the close of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall be entitled to receive interest on the principal amount
of such Notes, notwithstanding the exchange of such Notes prior to such Interest Payment Date.
However, a Holder that surrenders any Notes for exchange between the close of business on a Record
Date and the opening of business on the corresponding Interest Payment Date shall be required to
pay the Company an amount equal to the interest payable by the Company with respect to such Notes
on such Interest Payment Date at the time such Holder surrenders such Notes for exchange, provided,
however, that this sentence shall not apply to a Holder that exchanges Notes:
(i) in respect of which the Company has given notice of redemption pursuant to Section
3.03 on a Redemption Date that is after the relevant Record Date and on or prior to the
relevant Interest Payment Date; or
(ii) to the extent of any overdue interest, if any overdue interest exists at the time
of exchange with respect to such Notes;
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(iii) in connection with a Fundamental Change in which the Company has specified a
Fundamental Change Repurchase Date that is after a Record Date and on or prior to the next
Interest Payment Date; or
(iv) after 5:00 p.m., New York City time on the Record Date immediately preceding the
Maturity Date.
Accordingly, a Holder that exchanges Notes under any of the circumstances described in clauses (i),
(ii), (iii) or (iv) above will not be required to pay to the Company an amount equal to the
interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.
Section 4.02 Maintenance of Office or Agency for Exchange Agent. If at any time the Exchange
Agent is not the Trustee or an office or agency designated or appointed by the Trustee, the Company
will give prompt written notice to the Trustee of the location of such Exchange Agent. If at any
time the Company shall fail to maintain an office or agency for the Exchange Agent, presentations,
surrenders, notices and demands related to exchanges of Notes may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan initially
located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Division.
Section 4.03 Intentionally Omitted.
Section 4.04 Intentionally Omitted.
Section 4.05 Exclusion of Certain Provisions From Base Indenture. Section 1004, Section 1006,
Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002,
Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second
Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture
shall be applicable to the Notes.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default. The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to the events described in clauses
(1), (4), (5) (as amended by the Second Supplemental Indenture to the Base Indenture), (6) (as
amended by the Second Supplemental Indenture to the Base Indenture), (7) and (8) of the Base
Indenture, shall be Events of Default with respect to the Notes:
(a) default in the payment of principal or premium, if any, of any Note when due and payable
on the Maturity Date, upon redemption, repurchase, declaration or otherwise;
(b) failure by the Company to comply with its obligation to exchange the Notes into cash,
shares of Common Stock or a combination of cash and shares of Common
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Stock, as applicable, upon exercise of a Holder’s exchange right, and such failure continues
for a period of ten days; or
(c) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.02 when due, and such failure continues for a period of two days.
Section 5.02 Article Five of Base Indenture. Except as amended by Section 5.01 hereof, all of
the provisions of Article Five of the Base Indenture shall be applicable to the Notes.
ARTICLE VI
SUPPLEMENTAL INDENTURES
Section 6.01 Supplemental Indentures Without Consent of Noteholders. The provisions of
Section 901 of the Base Indenture shall be applicable to the Notes.
Section 6.02 Modification and Amendment with Consent of Noteholders. Section 902 of the Base
Indenture shall be applicable to the Notes. As contemplated by Sections 301 and 902 of the Base
Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding
Note affected thereby:
(a) make any change that adversely affects the exchange rights of any Notes;
(b) reduce the Fundamental Change Repurchase Price, Redemption Price or Put Right Repurchase
Price of any Note, or amend or modify in any manner adverse to Noteholders the Company’s obligation
to make such payments or Article III or Article IX of this Annex C of the Twelfth Supplemental
Indenture, whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise.
Section 6.03 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, the Base Indenture and this Annex C of the Twelfth Supplemental
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a
part of this Annex C of the Twelfth Supplemental Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
Section 6.04 Article Nine of Base Indenture. Except as amended by this Article VI, all of the
provisions of Article Nine of the Base Indenture shall be applicable to the Notes.
ARTICLE VII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base
Indenture shall be applicable to the Notes.
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ARTICLE VIII
EXCHANGE OF NOTES
Section 8.01 Exchange Privilege.
(a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11
hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have
the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged
is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the
close of business on the scheduled Trading Day immediately preceding February 15, 2013 at a rate
(the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as
provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under
the circumstances and during the periods set forth below. On and after February 15, 2013,
regardless of the conditions described in clause (b) through (f) below, upon compliance with the
provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the
right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is
$1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the
close of business on the scheduled Trading Day immediately preceding the Maturity Date at an
Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in
Section 8.04) per $1,000 principal amount of Notes.
(b) (1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its
Notes prior to February 15, 2013, during the five Business Day period immediately after any ten
consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Notes for each day of such Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such
date, all as determined by the Trustee in the manner described in the immediately succeeding
paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless
requested by the Company to do so in writing, and the Company shall have no obligation to make such
request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of
Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such
time and the then-applicable Exchange Rate, at which time the Company shall select three
independent nationally recognized securities dealers (each, an “Independent Securities Dealer”),
request that the Independent Securities Dealers provide a secondary market quotation for the Notes
and provide such determination to the Company and the Trustee in writing, and the Company shall
instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price
condition set forth above has been met, the Company shall so notify the Noteholders. If at any
time after the Trading Price condition set forth above has been met, the Trading Price per $1,000
principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on
such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
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(2) Any request by the Company to the Trustee for a determination of the Trading Price
and whether the Trading Price condition set forth in the first sentence of the immediately
preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting
forth, for each day of determination (as identified in such Certificate), the name of the
Independent Securities Dealers providing the secondary market bid quotations, a statement
certifying that that such dealers are “Independent Securities Dealers” as required in this
Section 8.01, the secondary market bid quotations obtained from such Independent Securities
Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s
calculation of the Trading Price for such date. The Trustee shall be entitled to
conclusively rely, without independent verification, on the quotations provided by the
Company in making its determinations hereunder. On the basis of such quotations, the
Trustee shall determine the Trading Price of the Notes, and provide such determination to
the Company. Absent manifest error, the Trustee’s determination of the Trading Price will
be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have
received a request from the Company for determination of the Trading Price for the Notes and
the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make
any determination of the Trading Price of the Notes or whether the Trading Price condition
has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during
any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter,
if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period
of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter
exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which
Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange
Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether
the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the
previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with
Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental
Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the
close of business on the second Business Day immediately preceding the corresponding Redemption
Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase
Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the
Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of
the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling
them to purchase, for a period expiring within 60 days, shares of Common Stock at a price
less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately
preceding the declaration date of such distribution; or
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(B) distribute to all or substantially all holders of Common Stock, assets or debt
securities of the Company or Parent or rights to purchase the Company’s or Parent’s
securities, which distribution has a per share value (as determined by the Board of
Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day
immediately preceding the date of declaration of such distribution,
then, in either case, Holders may surrender the Notes for exchange at any time on and after the
date that Parent provides notice to Holders referred to in the next sentence until the earlier of
the close of business on the Business Day immediately preceding the Ex-Dividend Date for such
distribution or the date Parent announces that such distribution will not take place. The Company
shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and
of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date
for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a
Fundamental Change, a Holder may surrender Notes for exchange at any time from and after the
30th scheduled Trading Day prior to the anticipated Effective Date of such transaction or
event until the related Fundamental Change Repurchase Date and, upon such surrender, the
Holder shall be entitled to the increase in the Exchange Rate, if any, specified in Section
8.01(g). The Company shall give notice to all record Noteholders and the Trustee and issue
a press release of the Fundamental Change no later than 30 scheduled Trading Days prior to
the anticipated Effective Date of the Fundamental Change.
(iii) If Parent is a party to a consolidation, merger, binding share exchange or sale
or conveyance of all or substantially all of its properties and assets, in each case
pursuant to which the Common Stock would be exchanged into cash, securities and/or other
property, then the Holders shall have the right to exchange Notes at any time beginning
fifteen calendar days prior to the date announced by Parent as the anticipated effective
date of the transaction and until and including the date that is fifteen calendar days after
the date that is the effective date of such transaction; provided such transaction does not
otherwise constitute a Fundamental Change to which the provisions of Section 8.01(e)(ii)
shall apply. The Company shall give notice to all record Noteholders and the Trustee and
issue a press release at least 20 calendar days prior to the anticipated effective date of
such transaction. If the Board of Directors determines the anticipated effective date of
the transaction, such determination shall be conclusive and binding on the Holders.
(f) The Notes shall be exchangeable at any time beginning on the first Business Day after any
30 consecutive Trading Day period during which the Common Stock is not listed on a U.S. national
securities exchange.
(g) (1) If a Noteholder elects to exchange Notes in connection with a Fundamental Change that
occurs prior to May 20, 2013, the Exchange Rate applicable to each $1,000 principal amount of Notes
so exchanged shall be increased by an additional number of shares of Common Stock (the “Additional
Shares”) as described below. Settlement of Notes tendered for exchange to which Additional Shares
shall be added to the Exchange Rate as
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provided in this subsection shall be settled pursuant to Section 8.02 below, as applicable.
For purposes of this Section 8.01(g), an exchange shall be deemed to be “in connection with” a
Fundamental Change to the extent that the related exchange notice is delivered during the time
period beginning on the 30th Trading Day prior to the anticipated Effective Date of such
Fundamental Change and ending on the related Fundamental Change Repurchase Date, inclusive
(regardless of whether the provisions of clauses (b), (c), (d), (e) or (f) of this Section 8.01
shall apply to such exchange). Such exchange notice shall indicate that the Holder of Notes has
elected to exchange Notes in connection with a Fundamental Change; provided, however, that the
failure to so indicate shall not in any way affect the Exchange Obligation or the right of such
Holder to receive Additional Shares in connection with such exchange.
(i) The number of Additional Shares by which the Exchange Rate will be increased shall
be determined by reference to the table attached as Schedule A hereto, based on the date on
which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the
Stock Price; provided, that if the Stock Price is between two Stock Price amounts in the
table or the Effective Date is between two Effective Dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between the number of
Additional Shares set forth for the next higher and next lower Stock Price amounts and the
two nearest Effective Dates, as applicable, based on a 365-day year; provided further that
if (1) the Stock Price is greater than $268.82 per share of Common Stock (subject to
adjustment in the same manner as set forth in Section 8.04), no Additional Shares will be
added to the Exchange Rate, and (2) the Stock Price is less than $140.82 per share of Common
Stock (subject to adjustment in the same manner as set forth in Section 8.04), no Additional
Shares will be added to the Exchange Rate. Notwithstanding the foregoing, in no event will
the total number of shares of Common Stock issuable upon exchange exceed 7.1015 per $1,000
principal amount of Notes (subject to adjustment in the same manner as set forth in clauses
(a), (b) and (c) of Section 8.04).
(ii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Exchange Rate of the Notes is adjusted. The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Exchange Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares
within the table shall be adjusted in the same manner as the Exchange Rate as set forth in
Section 8.04 (other than by operation of an adjustment to the Exchange Rate by adding
Additional Shares).
Section 8.02 Exchange Procedures.
(a) (1) The Company shall settle its Exchange Obligations as described in Section 8.02(a)(3),
unless, within the applicable time period specified in this Section 8.02(a)(1), the Company elects
to settle its Exchange Obligations as described in Section 8.02(a)(2) or Section 8.02(a)(4). The
cash and/or Common Stock which the Company is required to deliver in accordance with this Section
8.02 in settlement of its Exchange Obligations is referred to herein as the “Settlement Amount.” If
the Company desires to settle its Exchange Obligations as
C-17
described in Section 8.02(a)(2) or Section 8.02(a)(4), the Company shall notify each
exchanging Noteholder by notice to the Trustee (for further distribution to Noteholders) of the
method the Company will choose to satisfy its Exchange Obligations no later than the second Trading
Day immediately following the Company’s receipt of a Notice of Exchange from such Holder, and such
notice shall specify the section of this Annex C of the Twelfth Supplemental Indenture pursuant to
which the Company is electing to satisfy its exchange obligations; provided, however, that the
Company shall have the right to irrevocably elect, in its sole discretion and without the consent
of Noteholders, by notice to the Trustee (for further distribution to Noteholders), on or prior to
February 15, 2013, to settle all of its future Exchange Obligations entirely in shares of Common
Stock as described in Section 8.02(a)(2), and provided further, that the Company is required to
settle all exchanges with an Exchange Date occurring on or after February 15, 2013 in the same
manner, and the Company shall notify Noteholders by notice to the Trustee (for further distribution
to Noteholders) of the manner of settlement (including specifying the applicable section of this
Annex C of the Twelfth Supplemental Indenture that describes such manner of settlement) on or
before such date. The Company shall treat all Noteholders exchanging on the same Trading Day in
the same manner; however, the Company shall not have any obligation to settle its Exchange
Obligations arising on different Trading Days in the same manner, except for exchanges with an
Exchange Date occurring on or after February 15, 2013, which shall all be satisfied in the same
manner.
(2) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(2), the
Company shall have the right to settle its Exchange Obligations entirely in shares of Common
Stock. If the Company elects to satisfy its Exchange Obligation entirely in shares of
Common Stock, the Company shall deliver a number of shares of Common Stock equal to (i) the
aggregate principal amount of Notes to be exchanged divided by $1,000, multiplied by (ii)
the applicable Exchange Rate (which shall include any increases to reflect any Additional
Shares that such Holder is entitled to receive pursuant to Section 8.01(g) above). The
Company shall deliver such shares of Common Stock as soon as practicable after it has
notified the exchanging Holder pursuant to Section 8.02(a)(1) above, that it has elected to
satisfy its Exchange Obligation entirely in shares of Common Stock.
(3) If the Company does not elect, within the applicable time periods specified in
Section 8.02(a)(1), to settle its Exchange Obligations as described in Section 8.02(a)(2) or
8.02(a)(4), the Company shall settle its Exchange Obligations as described in this Section
8.02(a)(3), subject to Section 8.02(b) hereof. The Company shall deliver in respect of each
$1,000 principal amount of Notes being exchanged a Settlement Amount equal to the sum of the
Daily Settlement Amounts for each of the 20 consecutive Trading Days during the Observation
Period, on the third Trading Day immediately following the last day of the related
Observation Period; provided that the Company will deliver cash in lieu of fractional shares
of Common Stock as set forth pursuant to clause (k) below. The Daily Settlement Amounts
shall be determined by the Company promptly following the last day of the Observation
Period.
(4) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Exchange Obligations as described in this Section
C-18
8.02(a)(4), the Company shall have the right to settle all or a portion of the amount
by which the Daily Exchange Value exceeds $50 in cash in accordance with this Section
8.02(a)(4). In such case, the Company shall specify a percentage of the amount by which the
Daily Exchange Value exceeds $50 that will be settled in cash, or the “cash percentage.” The
Company will inform exchanging Holders by notice to the Trustee (for further distribution to
Noteholders) no later than two Trading Days prior to the first day of the applicable
Observation Period if it elects to pay cash upon exchange of the Notes and shall specify in
such notice (the “cash percentage notice”) the applicable cash percentage. If the Company
elects to specify a cash percentage, the amount of cash that the Company shall deliver in
respect of each Trading Day in the applicable Observation Period shall equal the product of
(w) the cash percentage and (x) the amount by which the Daily Exchange Value exceeds $50 for
such Trading Day. The number of shares of Common Stock deliverable in respect of each
Trading Day in the applicable Observation Period shall equal (i) the product of (y) 100%
minus the cash percentage and (z) the amount by which the Daily Exchange Value exceeds $50
for such Trading Day, divided by (ii) the Daily VWAP of the Common Stock for such Trading
Day. If the Company does not specify a cash percentage, it must settle the entire amount by
which the Daily Exchange Value exceeds $50 with shares of Common Stock pursuant to Section
8.02(a)(3) above; provided, however, that the Company will deliver cash in lieu of
fractional shares of Common Stock as set forth pursuant to clause (k) below. If the Company
specifies a cash percentage, the Company shall satisfy its Exchange Obligation by
delivering, on the third Trading Day immediately following the last day of the related
Observation Period, the amount of cash and the number of shares of Common Stock deliverable
pursuant to this Section 8.02(a)(4).
(b) Notwithstanding Section 8.02(a), the Company shall satisfy the Exchange Obligation with
respect to each $1,000 principal amount of Notes tendered for exchange to which Additional Shares
shall be added to the Exchange Rate as set forth in Section 8.01(g) pursuant to this clause (b).
(A) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is prior to the third Trading Day preceding the Effective Date of the
Fundamental Change, the Company will satisfy the related Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
by delivering the amount of cash and shares of Common Stock, if any (based on the Exchange
Rate, but without regard to the number of Additional Shares to be added to the Exchange Rate
pursuant to Section 8.01(g)) on the third Trading Day immediately following the last day of
the applicable Observation Period. In addition, as soon as practicable following the
Effective Date of the Fundamental Change, the Company will deliver the increase in such
amount of cash and Reference Property deliverable in lieu of shares of Common Stock, if any,
as if the Exchange Rate had been increased by such number of Additional Shares during the
related Observation Period (and based upon the related Daily VWAP prices during such
Observation Period). If such increased amount of cash and Common Stock, if any, results in
an increase to the amount of cash to be paid to Holders, the Company will pay such increase
in cash, and if such increased amount results in an increase to the number of shares of
Common Stock,
C-19
the Company will deliver such increase by delivering Reference Property based on such
increased number of shares.
(B) If the last day of the applicable Observation Period related to Notes surrendered
for exchange is on or following the third scheduled Trading Day preceding the Effective Date
of such Fundamental Change, the Company will satisfy the Exchange Obligation with respect to
each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a)
(based on the Exchange Rate as increased by the Additional Shares pursuant to Section
8.01(g) above) on the later to occur of (x) the Effective Date of the Fundamental Change and
(y) the third Trading Day immediately following the last day of the applicable Observation
Period.
(c) Before any Holder of a Note shall be entitled to exchange the same as set forth above,
such Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and Section
8.02(i) and, if required, pay all taxes or duties, if any, and (2) in the case of a Note issued in
certificated form, (A) complete and manually sign and deliver an irrevocable written notice to the
Exchange Agent in the form on the reverse of such certificated Note (or a facsimile thereof) (a
“Notice of Exchange”) at the office of the Exchange Agent and shall state in writing therein the
principal amount of Notes to be exchanged and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock, if any, to be
delivered upon settlement of the Exchange Obligation to be registered, (B) surrender such Notes,
duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer
documents), at the office of the Exchange Agent, (C) if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in
Section 4.01(b) and Section 8.02(i), and (D) if required, pay all taxes or duties, if any. A Note
shall be deemed to have been exchanged immediately prior to the close of business on the date (the
“Exchange Date”) that the Holder has complied with the requirements set forth in this Section
8.02(c).
No Notice of Exchange with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Put Right Repurchase Notice or a Fundamental Change Repurchase Notice
and not validly withdrawn such Put Right Repurchase Notice or Fundamental Change Repurchase Notice
in accordance with the applicable provisions of Section 9.01 or 9.02, as the case may be.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the
Exchange Obligation with respect to such Notes, if any, that shall be payable upon exchange shall
be computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so surrendered.
(d) Delivery of the amounts owing in satisfaction of the Exchange Obligation shall be made by
the Company in no event later than the date specified in Section 8.02(a), except to the extent
specified in Section 8.02(b). The Company shall make such delivery by paying the cash amount owed
to the Exchange Agent or to the Holder of the Note surrendered for exchange, or such Holder’s
nominee or nominees, and by issuing, or causing to be issued, and delivering to
C-20
the Exchange Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a
book-entry transfer through the Depositary for the number of full shares of Common Stock to which
such Holder shall be entitled as part of such Exchange Obligation (together with any cash in lieu
of fractional shares).
(e) In case any Note shall be surrendered for partial exchange, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unexchanged portion of the surrendered Notes.
(f) If a Holder submits a Note for exchange, the Company shall pay all stamp and other duties,
if any, which may be imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon
the exchange. However, the Holder shall pay any such tax that is due because the Holder requests
any shares of Common Stock to be issued in a name other than the Holder’s name. The Exchange Agent
may refuse to deliver the certificates representing the shares of Common Stock being issued in a
name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the Holder’s name. Nothing
herein shall preclude any tax withholding required by law or regulations.
(g) Except as provided in Section 8.04, no adjustment shall be made for dividends on any
shares issued upon the exchange of any Note as provided in this Article.
(h) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
exchange of Notes effected through any Exchange Agent other than the Trustee.
(i) Upon exchange, a Noteholder will not receive any separate cash payment for accrued and
unpaid interest, except as set forth below. The Company’s settlement of its Exchange Obligation as
described above shall be deemed to satisfy its obligation to pay the principal amount of the Note
and accrued and unpaid interest to, but not including, the Exchange Date. As a result, accrued and
unpaid interest to, but not including, the Exchange Date shall be deemed to be paid in full rather
than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Notes are
exchanged after the close of business on a Record Date, Holders of such Notes as of the close of
business on the Record Date will receive the interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange during the
period from the close of business on any regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on the Notes so exchanged; provided, however, that no such payment need be made
(1) if the Company has called the Notes for redemption or (2) to the extent of any overdue interest
existing at the time of exchange with respect to such Note, (3) to Notes surrendered for exchange
in connection with a Fundamental Change in which the Company has specified a Fundamental Change
Repurchase Date that is after a Record Date and on or prior to the next Interest Payment Date, or
(4) to Notes surrendered
C-21
for exchange after 5:00 p.m., New York City time on the Record Date immediately preceding the
Maturity Date. Except as described above, no payment or adjustment will be made for accrued
interest on exchanged Notes.
(j) The Person in whose name the certificate for any shares of Common Stock issued upon
exchange is registered shall be treated as a stockholder of record on and after the Exchange Date;
provided, however, that no surrender of Notes on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons entitled to receive
the shares of Common Stock upon such exchange as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such stock transfer books
are open; such exchange shall be at the Exchange Rate in effect on the date that such Notes shall
have been surrendered for exchange, as if the stock transfer books of the Company had not been
closed. Upon exchange of Notes, such Person shall no longer be a Noteholder.
(k) No fractional shares of Common Stock shall be issued upon exchange of any Note or Notes.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the number
of full shares that shall be issued upon exchange thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock that would otherwise be issued upon exchange of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction
of the Last Reported Sale Price of the Common Stock on the last day of the applicable Observation
Period.
(l) Reserved.
Section 8.03 Reserved.
Section 8.04 Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to
time by the Company as follows:
(a) In case Parent shall issue Common Stock as a dividend or distribution to holders of the
outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common
Stock or combination into a lesser number of shares of Common Stock, the Exchange Rate shall be
adjusted based on the following formula:
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to the Ex-Date for such dividend or distribution or the
effective date of such share split or combination, as the case may be; |
C-22
|
|
|
ER' =
|
|
the Exchange Rate in effect as of the Ex-Date for such dividend or distribution or the effective date of such
share split or combination, as the case may be; |
|
|
|
OS0 =
|
|
the number of shares of Common Stock outstanding immediately prior to such event; and |
|
|
|
OS' =
|
|
the number of shares of Common Stock outstanding immediately after such event. |
Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Business Day following the record date fixed for such determination. If any dividend or
distribution of the type described in this Section 8.04(a) is declared but not so paid or made, or
the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the
Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares
of Common Stock, as the case may be, to the Exchange Rate that would then be in effect if such
dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common
Stock any rights, warrants or convertible securities entitling them (for a period expiring within
sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common
Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the
Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate
shall be adjusted based on the following formula:
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to the Ex-Date for such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
|
OS0 =
|
|
the number of shares of Common Stock outstanding immediately prior to such event; |
|
|
|
X =
|
|
the total number of shares of Common Stock issuable pursuant to such rights, warrants or convertible
securities; and |
|
|
|
Y =
|
|
the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants
or convertible securities divided by the average of the Last Reported Sale Prices per share of Common Stock
over the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date
(or, if later, the Ex-Date relating to such distribution) for the issuance of such rights, warrants or
convertible securities. |
Such adjustment shall be successively made whenever any such rights, warrants or convertible
securities are issued and shall become effective immediately after 9:00 a.m., New York City time,
on the Business Day following the date fixed for such determination. If such rights,
C-23
warrants or convertible securities are not so exercised prior to their expiration, the Exchange
Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such record
date for such distribution had not been fixed.
In determining whether any rights, warrants or convertible securities entitle the holder
thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Last
Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of
announcement of such issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by Parent for such
rights, warrants or convertible securities and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of
Trustees.
(c) In case Parent shall distribute to all or substantially all holders of its Common Stock
shares of Capital Stock, evidences of its indebtedness or other assets or property of Parent
(including securities, but excluding dividends and distributions covered by Section 8.04(a),
Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with
respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or
property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such
case the Exchange Rate shall be adjusted based on the following formula:
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to the Ex-Date for such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
|
SP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period
ending on the Business Day immediately preceding the record date for such distribution (or, if earlier, the
Ex-Date relating to such distribution); and |
|
|
|
FMV =
|
|
the fair market value (as determined by the Board of Trustees) of the Distributed Property distributed with
respect to each outstanding share of Common Stock on the record date for such distribution (or, if earlier,
the Ex-Date relating to such distribution). |
Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the
Business Day following the date fixed for the determination of stockholders entitled to receive
such distribution; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one share of Common Stock is equal to or
greater than SP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Noteholder shall have the right to receive, for each $1,000 principal amount
of Notes upon exchange, the amount of Distributed Property such Holder
C-24
would have received had such Holder owned a number of shares of Common Stock equal to the Exchange
Rate on the record date. If such dividend or distribution is not so paid or made, the Exchange
Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend
or distribution had not been declared. If the Board of Trustees determines the fair market value
of any distribution for purposes of this Section 8.04(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in determining SP0 above.
With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of Capital Stock, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), unless the
Company distributes such shares of Capital Stock or equity interests to each Noteholder on the same
basis as such Noteholder would have received had it exchanged its Notes solely into shares of
Common Stock immediately prior to such dividend or distribution, the Exchange Rate in effect
immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of
stockholders entitled to receive the distribution will be increased based on the following formula:
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect immediately after such distribution; |
|
|
|
FMV0 =
|
|
the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to
holders of shares of Common Stock applicable to one share of Common Stock over the first ten consecutive
Trading Day period after the effective date of the Spin-Off; and |
|
|
|
MP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day
period after the effective date of the Spin-Off. |
Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any exchange within the ten Trading Days following any
Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between such Spin-Off and the Exchange Date in
determining the applicable Exchange Rate.
Rights or warrants distributed by Parent to all holders of Common Stock, entitling the holders
thereof to subscribe for or purchase shares of Common Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified event or events
(“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of shares of
Common Stock, shall be deemed not to have been distributed for purposes of this Section 8.04
C-25
(and no adjustment to the Exchange Rate under this Section 8.04 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall
be made under this Section 8.04(c). If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Annex C of the Twelfth Supplemental
Indenture, are subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other assets, then the
date of the occurrence of any and each such event shall be deemed to be the date of distribution
and record date with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the
Exchange Rate under this Section 8.04 was made, (1) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders thereof, the Exchange
Rate shall be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to
the per share redemption or repurchase price received by a holder or holders of Common Stock with
respect to such rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Exchange Rate shall be readjusted as if such rights and warrants had not been
issued.
For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or
distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock
to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of
Common Stock to which Section 8.04(a) or Section 8.04(b) applies (or both), shall be deemed instead
to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital
Stock other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies
(and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Exchange Rate adjustment
required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall
then be made), except (A) the record date of such dividend or distribution shall be substituted as
“the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a)
and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to such event” within the meaning of Section
8.04(a).
(d) In case Parent shall pay a dividend or make a distribution consisting exclusively of cash
to all or substantially all holders of its Common Stock to the extent that the aggregate of all
such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount for
such quarter, the Exchange Rate shall be adjusted based on the following formula:
C-26
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect immediately prior to the Ex-Date for such distribution; |
|
|
|
ER' =
|
|
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
|
SP0 =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the period of ten consecutive Trading
Days ending the Business Day immediately preceding the record date (as defined in clause (f) of this Section)
for such distribution (or, if earlier, the Ex-Date relating to such distribution); |
|
|
|
T =
|
|
the dividend threshold amount (“Dividend Threshold Amount”), which amount shall initially be $1.1593 per
quarter and which shall be appropriately adjusted from time to time for any stock dividends on, or
subdivisions or combinations of, Common Stock; provided, that if an Exchange Rate adjustment is required to be
made as a result of a distribution that is not a quarterly dividend either in whole or in part, the Dividend
Threshold Amount shall be deemed to be zero; and |
|
|
|
C =
|
|
the amount in cash per share that Parent distributes to holders of Common Stock. |
Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the
record date for such dividend or distribution; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than SP0 above, in lieu
of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon exchange of a Note (or any portion thereof) the amount of cash such
Holder would have received had such Holder owned a number of shares equal to the Exchange Rate on
the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared.
For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become exchangeable into more
than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this
Section 8.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
exchangeable equal to the number of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.
(e) In case Parent or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for all or any portion of the shares of Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of Common Stock exceeds the
Last Reported Sale Price of the Common Stock on the Trading Day next
C-27
succeeding the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer (as it may be amended), the Exchange Rate shall be increased based on the following
formula:
|
|
|
|
|
where |
|
|
|
ER0 =
|
|
the Exchange Rate in effect on the date such tender or exchange offer expires; |
|
|
|
ER' =
|
|
the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires; |
|
|
|
AC =
|
|
the aggregate value of all cash and any other consideration (as determined by the Board of Trustees) paid or
payable for shares purchased in such tender or exchange offer; |
|
|
|
OS0 =
|
|
the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer
expires; |
|
|
|
OS' =
|
|
the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer
expires; and |
|
|
|
SP =
|
|
the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period
commencing on the Trading Day next succeeding the date such tender or exchange offer expires, |
such adjustment to become effective immediately prior to the opening of business on the day
following the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer. If Parent is obligated to purchase shares pursuant to any such tender or exchange
offer, but Parent is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Exchange Rate shall again be
adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had
not been made or had only been made in respect of the purchases that had been effected. No
adjustment to the Exchange Rate will be made if the application of the foregoing formulae would
result in a decrease in the Exchange Rate.
(f) For purposes of this Section 8.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the shares of Common Stock (or
other applicable securities) are 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) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section 8.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York
Stock Exchange, the Company from time to time may increase the Exchange Rate
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by any amount for a period of at least 20 days if the Board of Trustees determines that such
increase would be in the Company’s best interest. In addition, the Company may also (but is not
required to) increase the Exchange Rate to avoid or diminish any income tax to holders of Common
Stock or rights to purchase shares of Common Stock in connection with any dividend or distribution
of shares (or rights to acquire shares) or similar event. Whenever the Exchange Rate is increased
pursuant to the preceding sentence, the Company shall mail to the Holder of each Note at his last
address appearing on the Security Register a notice of the increase at least five days prior to the
date the increased Exchange Rate takes effect, and such notice shall state the increased Exchange
Rate and the period during which it will be in effect.
(h) All calculations and other determinations under this Article VIII shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share of stock, as the case may be. No adjustment shall be made for Parent’s issuance of shares of
Common Stock or any securities convertible into or exchangeable for shares of Common Stock, or the
right to purchase shares of Common Stock or such convertible or exchangeable securities, other than
as provided in this Section 8.04. No adjustment shall be made to the Exchange Rate unless such
adjustment would require a change of at least 1% in the Exchange Rate then in effect at such time.
The Company shall carry forward any adjustments that are less than 1% of the Exchange Rate and make
such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%
within one year of the first such adjustment carried forward, upon a Fundamental Change, upon any
call of the Notes for redemption or upon maturity.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting
forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. The Trustee and Exchange Agent may conclusively rely on the accuracy of
the Exchange Rate adjustment provided by the Company. Unless and until a Responsible Officer of
the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Exchange Rate setting
forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Exchange Rate to the Holder of each Note at his last
address appearing on the Security Register, within thirty (30) days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.
(j) For purposes of this Section 8.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of Parent but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Notwithstanding the foregoing provisions of this Section 8.04, in no event will the total
number of Common Stock issuable upon exchange exceed 7.1015 per $1,000 principal amount of Notes
(subject to adjustment in the same manner or as set forth in clauses (a), (b) and (c) of this
Section 8.04).
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Section 8.05 Sufficient Shares to be Delivered. To the extent the Company elects to deliver
shares of Common Stock, and subject to Section 8.02(k), the Company shall provide, free from
preemptive rights, sufficient shares of Common Stock to provide for exchange of the Notes from time
to time as such Notes are presented for exchange.
Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely (i) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (ii) any consolidation, merger or
combination of Parent with another Person, or (iii) any sale or conveyance of all or substantially
all of the property and assets of Parent to any other Person, in either case as a result of which
holders of Common Stock shall be entitled to receive cash, securities or other property or assets
with respect to or in exchange for such shares of Common Stock (any such event a “Merger Event”),
then:
(a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which, as evidenced in an Opinion of Counsel delivered to the
Trustee, shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so comply) providing for
the exchange and settlement of the Notes as set forth in this Annex C of the Twelfth Supplemental
Indenture. Such supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article and the Trustee
may conclusively rely on the determination by the Company of the equivalency of such adjustments.
If, in the case of any Merger Event, the Reference Property includes shares of stock or other
securities and assets of a corporation other than the successor or purchasing corporation, as the
case may be, in such reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders of the Notes as
the Board of Trustees shall reasonably consider necessary by reason of the foregoing, including to
the extent required by the Board of Trustees and practicable the provisions providing for the
repurchase rights set forth in Article IX herein.
In the event the Company shall execute a supplemental indenture pursuant to this Section 8.06,
the Company shall, in addition to the Officers’ Certificate and Opinion of Counsel required by
Section 102 of the Base Indenture, file with the Trustee an Officers’ Certificate briefly stating
the kind or amount of cash, securities or property or asset that will constitute the Reference
Property after any such Merger Event, any adjustment to be made with respect thereto, and the
Trustee shall promptly mail notice thereof to all Noteholders.
(b) Notwithstanding the provisions of Section 8.02(a) and Section 8.02(b), and subject to the
provisions of Section 8.01, at the effective time of such Merger Event, the right to exchange each
$1,000 principal amount of Notes will be changed to a right to exchange such Note by reference to
the kind and amount of cash, securities or other property or assets that a holder of a number of
shares of Common Stock equal to the Exchange Rate immediately prior to such transaction would have
owned or been entitled to receive (the “Reference Property”) such that from and after the effective
time of such transaction, a Noteholder will be entitled
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thereafter to exchange its Notes, subject to the successor’s right to deliver cash, shares of
Common Stock or common stock of such successor or a combination of cash and shares of Common Stock
as set forth in Section 8.02(b), into cash (up to the aggregate principal amount thereof) and, in
lieu of the shares of Common Stock otherwise deliverable, the same type (and in the same
proportion) of Reference Property, based on the Daily Settlement Amounts of Reference Property in
an amount equal to the applicable Exchange Rate, as described under Section 8.02(b). For purposes
of determining the constitution of Reference Property, the type and amount of consideration that a
holder of Common Stock would have been entitled to in the case of reclassifications,
consolidations, mergers, sales or conveyance of assets or other transactions that cause the Common
Stock to be converted into the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder election) will be deemed to be the weighted
average of the types and amounts of consideration received by the holders of shares of Common Stock
that affirmatively make such an election. Parent shall not become a party to any such transaction
unless its terms are consistent with the preceding. None of the foregoing provisions shall affect
the right of a Holder of Notes to exchange its Notes in accordance with the provisions of Article
VIII hereof prior to the effective date.
(c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Security Register, within thirty (30)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Section 8.07 Certain Covenants. The Company covenants that all shares of Common Stock
delivered upon exchange of Notes will be fully paid and non-assessable by Parent and free from all
taxes, liens and charges with respect to the issue thereof.
Section 8.08 Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at
any time be under any duty or responsibility to any Noteholder to determine the Exchange Rate or
whether any facts exist which may require any adjustment of the Exchange Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Exchange Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any
other Exchange Agent make no representations with respect thereto. Neither the Trustee nor any
Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any
shares of Common Stock or share certificates or other securities or property or cash upon the
surrender of any Note for the purpose of exchange or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or
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amount of shares of stock or securities or property (including cash) receivable by Noteholders
upon the exchange of their Notes after any event referred to in such Section 8.06 or to any
adjustment to be made with respect thereto, but, subject to the provisions of Article Six of the
Base Indenture, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate with respect thereto.
Section 8.09 Notice to Holders Prior to Certain Actions.
In case:
(a) Parent shall declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Exchange Rate pursuant to Section 8.04; or
(b) Parent shall authorize the granting to all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other rights or warrants;
(c) of any reclassification of the Common Stock (other than a subdivision or combination of
its outstanding Common Stock, or a change in par value, or from par value to no par value, or from
no par value to par value), or of any consolidation or merger to which Parent is a party and for
which approval of any stockholders of Parent is required, or of the sale or transfer of all or
substantially all of the assets of Parent; or
(d) of the voluntary or involuntary dissolution, liquidation or winding-up of Parent,
the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Security Register as promptly as possible but in any event at least thirty
(30) days prior to the applicable date specified in clause (x) or (y) below, as the case may be, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.
Section 8.10 Stockholder Rights Plans. Upon exchange of the Notes, the Holders shall receive,
in addition to any shares of Common Stock issuable upon such exchange, the associated rights issued
under any future stockholder rights plan Parent adopts unless, prior to exchange, the rights have
separated from the shares of Common Stock, expired, terminated or been redeemed or converted in
accordance with such rights plan. If, and only if, the Holders receive rights under such
stockholder rights plans as described in the preceding sentence upon exchange of their
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Notes, then no other adjustment pursuant to this Article VIII shall be made in connection with
such stockholder rights plans.
Section 8.11 Ownership Limit. Notwithstanding any other provision of this Annex C of the
Twelfth Supplemental Indenture or the Notes, no Holder of Notes (or beneficial owner of Notes)
shall be entitled to exchange such Notes for shares of Common Stock to the extent that receipt of
such shares would cause such Holder (or beneficial owner of Notes) (together with such Holder’s (or
beneficial owner’s) affiliates) to exceed the applicable ownership limit contained in the articles
of incorporation of Parent.
ARTICLE IX
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates.
(a) The provisions of Article Thirteen of the Base Indenture shall not be applicable to the
Notes.
(b) Each Noteholder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes or any portion thereof that is a multiple of $1,000 principal
amount, for cash on May 15, 2013, May 15, 2018, May 15, 2023, May 15, 2028 and May 15, 2033 (each,
a “Put Right Repurchase Date”) at a repurchase price per Note equal to 100% of the aggregate
principal amount of the Notes being repurchased, together with any accrued and unpaid interest up
to, but not including, such Put Right Repurchase Date (the “Put Right Repurchase Price”).
Repurchases of Notes by the Company pursuant to this Section 9.01 shall be made, at the option
of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by the
Holder of a written notice of purchase (a “Put Right Repurchase Notice”) in the form set
forth on the reverse of the Note at any time from the opening of business on the date that
is 25 Business Days prior to the applicable Put Right Repurchase Date until the close of
business on the fifth Business Day prior to such Put Right Repurchase Date stating:
(A) if certificated, the certificate numbers of the Notes to be delivered for
repurchase;
(B) the portion of the principal amount of the Notes to be repurchased, which must be
$1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased as of the applicable Put Right Repurchase Date
pursuant to the terms and conditions specified in the Notes and in this Annex C of the
Twelfth Supplemental Indenture, and
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(ii) delivery of such Note to the Paying Agent prior to, on or after the Put Right
Repurchase Date (together with all necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by the Holder of the Put Right Repurchase
Price therefor, which shall be so paid pursuant to this Section 9.01 only if the Note so
delivered to the Paying Agent shall conform in all respects to the description thereof in
the related Put Right Repurchase Notice, as determined by the Company.
The Company shall repurchase from the Holder thereof, pursuant to this Section 9.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Annex C of the Twelfth Supplemental Indenture that apply to the repurchase of
all of a Note also apply to the repurchase of such portion of such Note.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Put Right Repurchase Date and the time of delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Put Right Repurchase Notice or written notice of withdrawal thereof in
accordance with the provisions of Section 9.01(e).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(c) In connection with any purchase of Notes pursuant to this Section 9.01, the Company shall
give written notice of the Put Right Repurchase Date to the Holders (the “Company Put Right
Notice”).
The Company Put Right Notice shall be sent by first-class mail to the Trustee and to each
Holder (and to each beneficial owner as required by applicable law) that has delivered a Put Right
Repurchase Notice within ten Business Days of receipt of such Put Right Repurchase Notice, or, if a
shorter period, at least two Business Days prior to any Put Right Repurchase Date (the “Company Put
Right Notice Date”). Each Company Put Right Notice shall include a form of Put Right Repurchase
Notice to be completed by a Noteholder and shall state:
(i) the Put Right Repurchase Price and the Exchange Price;
(ii) the name and address of the Paying Agent and the Exchange Agent;
(iii) that Notes as to which a Put Right Repurchase Notice has been given may be
exchanged in accordance with Article VIII hereof only if the applicable Put Right
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Repurchase Notice has been withdrawn in accordance with the terms of this Annex C of
the Twelfth Supplemental Indenture;
(iv) that Notes must be surrendered to the Paying Agent to collect payment;
(v) that the Put Right Repurchase Price for any Note as to which a Put Right Repurchase
Notice has been given and not withdrawn will be paid promptly following the later of the Put
Right Repurchase Date and the time of surrender of such Note as described in subclause (iv)
above;
(vi) the procedures the Holder must follow to exercise rights under this Section and a
brief description of those rights;
(vii) briefly, the exchange rights of the Notes;
(viii) the procedures for withdrawing a Put Right Repurchase Notice (including pursuant
to the terms of Section 9.01(e));
(ix) that, unless the Company defaults in making payment on Notes for which a Put Right
Repurchase Notice has been submitted, interest on the Notes in respect of which a Put Right
Repurchase Notice has been delivered and not withdrawn will cease to accrue on the Put Right
Repurchase Date; and
(x) the CUSIP number of the Notes.
If any of the Notes are to be redeemed in the form of a Global Note, the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
redemptions.
At the Company’s request, the Trustee shall give such Company Put Right Notice in the
Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of
such Company Put Right Notice shall be prepared by the Company.
(d) Upon receipt by the Trustee (or other Paying Agent appointed by the Company) of the Put
Right Repurchase Notice specified in Section 9.01(a), the Holder of the Note in respect of which
such Put Right Repurchase Notice was given shall (unless such Put Right Repurchase Notice is
withdrawn as specified in Section 9.01(e)) thereafter be entitled to receive solely the Put Right
Repurchase Price with respect to such Note. Such Put Right Repurchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the
Put Right Repurchase Date with respect to such Note (provided the conditions in Section 9.01(a)
have been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 9.01(a). Notes in respect of which a Put Right
Repurchase Notice has been given by the Holder thereof may not be exchanged pursuant to Article
VIII hereof on or after the date of the delivery of such Put Right Repurchase Notice, unless such
Put Right Repurchase Notice has first been validly withdrawn as specified in Section 9.01(e).
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(e) A Put Right Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Put Right Repurchase Notice at
any time prior to 10:00 A.M. New York City time on the fourth Business Day prior to the Put Right
Repurchase Date specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes,
(ii) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted, and
(iii) the principal amount, if any, of such Notes that remains subject to the original
Put Right Repurchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
A written notice of withdrawal of a Put Right Repurchase Notice shall be in the form set forth
in the preceding paragraph.
Upon receipt of a written notice of withdrawal, the Paying Agent shall promptly return to the
Holders thereof any Notes in respect of which a Put Right Repurchase Notice has been withdrawn in
accordance with the provisions of Section 9.01(f).
(f) There shall be no repurchase of any Notes pursuant to this Section 9.01 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of
the required Put Right Repurchase Notice) and is continuing an Event of Default with respect to
Notes (other than a default in the payment of the Put Right Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Notes held by
it during the continuance of an Event of Default with respect to Notes (other than a default in the
payment of the Put Right Repurchase Price with respect to such Notes), in which case, upon such
return, the Put Right Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
(g) Prior to 11:00 a.m. (local time in The City of New York) on the Put Right Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance
with the terms of the Base Indenture as modified by this Annex C of the Twelfth Supplemental
Indenture) an amount (in immediately available funds if deposited on such Business Day) sufficient
to pay the aggregate Put Right Repurchase Price of all the Notes or portions thereof which are to
be purchased as of the Put Right Repurchase Date. The manner in which the deposit required by this
Section 9.01(g) is made by the Company shall be at the option of the Company; provided that such
deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Put Right Repurchase Date.
If the Trustee (or other Paying Agent appointed by the Company) holds, in accordance with the
terms hereof, money sufficient to pay the Put Right Repurchase Price of any Note, then,
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on the Put Right Repurchase Date, such Note will cease to be Outstanding and the rights of the
Holder in respect thereof shall terminate (other than the right to receive the Put Right Repurchase
Price as aforesaid).
To the extent that the aggregate amount of cash deposited by the Company pursuant to this
Section 9.01(g) exceeds the aggregate Put Right Repurchase Price of the Notes or portions thereof
that the Company is obligated to purchase, then promptly after the Put Right Repurchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the Company.
Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Noteholder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20)
Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).
Repurchases of Notes under this Section 9.02 shall be made, at the option of the Holder
thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth on the reverse of the Note prior to the close of business on the Fundamental
Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements) at the Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the
City of Boston, such delivery being a condition to receipt by the Holder of the Fundamental
Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price
shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee
(or other Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice.
The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be
$1,000 or an integral multiple thereof; and
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(C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and this Annex C of the Twelfth Supplemental Indenture.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.02
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 9.02(c).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(b) On or before the twentieth day after the occurrence of any Fundamental Change, the Company
shall provide to all Holders of record of the Notes and the Trustee and Paying Agent a notice (the
“Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the
repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be
by first class mail. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall publish a notice containing the information included therein once in a newspaper of
general circulation in The City of New York or publish such information on the Company’s website or
through such other public medium as the Company may use at such time.
Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) that the Holder must exercise the repurchase right on or prior to the close of
business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Exchange Agent;
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(vii) the applicable Exchange Rate and any adjustments to the applicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has
been delivered by a Holder may be exchanged only if the Holder withdraws the Fundamental
Change Repurchase Notice in accordance with the terms of this Annex C of the Twelfth
Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their
Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Trustee and Paying Agent in accordance with the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes; and
(iii) the principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000; provided, however, that if the Notes are not in
certificated form, the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the second Business Day
following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or
other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this
Annex C of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the
Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the
Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made
promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note
(provided the Holder has satisfied the conditions to the payment of the Fundamental Change
Repurchase Price in Section 9.02), and (y) the time of book-entry transfer or the delivery of such
Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the
manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such
Notes entitled thereto as they shall appear in the Security Register, provided, however, that
payments to the
C-39
Depositary shall be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand
by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase
Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities
sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions
thereof that are to be purchased as of the second Business Day following the Fundamental Change
Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease
to be Outstanding, (ii) interest will cease to accrue on such Notes, and (iii) all other rights of
the Holders of such Notes will terminate, whether or not book-entry transfer of the Notes has been
made or the Notes have been delivered to the Trustee or Paying Agent, other than the right to
receive the Fundamental Change Repurchase Price upon delivery of the Notes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Ratification of Base Indenture. Except as expressly modified or amended hereby,
the Base Indenture continues in full force and effect and is in all respects confirmed, ratified
and preserved and the provisions thereof shall be applicable to the Notes and this Annex C of the
Twelfth Supplemental Indenture. Without limiting the generality of the foregoing, the Notes shall
have the benefit of Article Three of the Second Supplemental Indenture to the Base Indenture in
accordance with its terms.
Section 10.02 Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Annex C of the Twelfth Supplemental
Indenture shall bind its successors and assigns whether so expressed or not.
Section 10.03 Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Annex C of the Twelfth Supplemental Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation or entity
that shall at the time be the lawful sole successor of the Company.
Section 10.04 Addresses for Notices, Etc. Any notice or demand which by any provision of this
Annex C of the Twelfth Supplemental Indenture is required or permitted to be given or served by the
Trustee or by the Noteholders on the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is filed by the Company
with the Trustee) to ProLogis, 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box addressed to U.S. Bank
National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Services/ProLogis.
C-40
The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Security Register and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
Section 10.05 Governing Law. THIS ANNEX C OF THE TWELFTH SUPPLEMENTAL INDENTURE AND EACH NOTE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED THEREIN.
Section 10.06 Non-Business Day. Section 113 of the Base Indenture shall also apply to any
Fundamental Change Purchase Date, Put Right Repurchase Date or Exchange Date in respect of the
Notes.
Section 10.07 Benefits of Indenture. Nothing in this Annex C of the Twelfth Supplemental
Indenture or in the Notes, expressed or implied, shall give to any person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Security Registrar and their successors
hereunder, the Noteholders, any benefit or any legal or equitable right, remedy or claim under this
Annex C of the Twelfth Supplemental Indenture.
Section 10.08 Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Annex C of the Twelfth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.09 Execution in Counterparts. This Annex C of the Twelfth Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 10.10 Trustee . The Trustee makes no representations as to the validity or
sufficiency of this Annex C of the Twelfth Supplemental Indenture. The statements and recitals
herein are deemed to be those of the Company and not of the Trustee.
Section 10.11 Further Instruments and Acts. Upon request of the Trustee, the Company and
Parent 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 Annex C of the
Twelfth Supplemental Indenture.
Section 10.12 Waiver of Jury Trial. EACH OF THE COMPANY, PARENT AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
C-41
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.13 Force Majeure. In no event shall the Trustee or Exchange Agent be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
C-42
SCHEDULE A
Share Price
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Effective Date |
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$140.82 |
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$145.61 |
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$151.21 |
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$156.81 |
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$162.41 |
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$168.01 |
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$173.61 |
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$179.21 |
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$190.41 |
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$201.61 |
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$212.81 |
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$224.01 |
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$246.42 |
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$268.82 |
May 20, 2011 |
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1.2446 |
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1.0353 |
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0.8923 |
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0.7672 |
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0.6578 |
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0.5623 |
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0.4790 |
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0.4065 |
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0.2887 |
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0.2004 |
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0.1350 |
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0.0872 |
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0.0295 |
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0.0044 |
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May 20, 2012 |
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1.2446 |
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1.0108 |
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0.7954 |
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0.6614 |
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0.5468 |
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0.4491 |
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0.3662 |
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0.2961 |
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0.1878 |
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0.1129 |
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0.0630 |
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0.0312 |
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0.0021 |
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0.0000 |
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May 20, 2013 |
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1.2446 |
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1.0108 |
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0.7564 |
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0.5202 |
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0.3003 |
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0.0951 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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C-Sch A-1
EXHIBIT A
[FORM OF FACE OF NOTE]
[Include only for Global Notes]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-Exh A-1
PROLOGIS
2.625% Convertible Senior Notes due 2038
CUSIP No. 743410 AS1
PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.], or registered assigns, the principal sum of [___] ($[___]) or such other principal amount as
shall be set forth on the Schedule I hereto on May 15, 2038.
This Security shall bear interest at the rate of 2.625% per year from May 7, 2008, or from the
most recent date to which interest had been paid or provided. Interest is payable semi-annually in
arrears on each May 15 and November 15, commencing May 15, 2008, to Holders of record at the close
of business on the preceding May 1 and November 1, respectively. Interest payable on each Interest
Payment Date shall equal the amount of interest accrued from, and including the immediately
preceding Interest Payment Date (or from and including May 7, 2008, if no interest has been paid
hereon) to but excluding such Interest Payment Date.
Payment of the principal and interest, on this Security will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, City of New York or the
City of Boston, or elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest, may be made by
(i) check mailed to the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) transfer to an account of the Person entitled thereto located inside the
United States; provided further, however, that, with respect to any Holder of Securities with an
aggregate principal amount in excess of $1,000,000, at the application of such Holder in writing to
the Company, interest on such Holder’s Securities shall be paid by wire transfer in immediately
available funds to such Holder’s account in the United States supplied by such Holder from time to
time to the Trustee and Paying Agent (if different from the Trustee) not later than the applicable
record date.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash, Common Shares of the Company or a combination of cash and Common Shares on
the terms and subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.
C-Exh A-2
This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
C-Exh A-3
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the
undersigned officer.
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PROLOGIS
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By: |
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Name: |
[___] |
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Title: |
[___] |
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Attest
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By: |
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Name: |
[___] |
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Title: |
[___] |
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Dated: [_____], 20[__]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as
successor trustee
C-Exh A-4
[FORM OF REVERSE OF NOTE]
PROLOGIS
2.625% Convertible Senior Notes due 2038
This Security is one of a duly authorized issue of Securities of the Company, designated as
its 2.625% Convertible Senior Notes due 2038 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005 and the Sixth Supplemental
Indenture, dated as of May 7, 2008 (as so supplemented, herein called the “Indenture”), between the
Company and U.S. Bank National Association (herein called the “Trustee”), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders of the Securities. Additional Securities may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
Prior to May 20, 2013, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Sixth
Supplemental Indenture. Subject to the terms and conditions of the Indenture, on or after May 20,
2013, the Company shall have the right to redeem the Securities, in whole or from time to time in
part, at a price equal to 100% of the principal amount of the Securities being redeemed, plus
accrued and unpaid interest. Any such redemption shall be upon at least 30 days’ and no more than
60 days’ notice to Holders of the Securities.
Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase Price,
the Redemption Price and the principal amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in respect of the
Security. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall make any of the
changes set forth in Section 6.02 of the Sixth Supplemental Indenture, without the consent of each
Holder of an Outstanding Security affected thereby. It is also provided in the Indenture
C-Exh A-5
that, prior to any declaration accelerating the maturity of the Securities, the Holders of a
majority in principal amount of the Securities at the time Outstanding may on behalf of the Holders
of all of the Securities waive any past default or Event of Default under the Indenture and its
consequences except as provided in the Indenture. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Security and any Securities which may be
issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.
The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred
to on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.
The Securities are not subject to redemption through the operation of any sinking fund.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.
On May 15, 2013, May 15, 2018, May 15, 2023, May 15, 2028 and May 15, 2033, the Holder has the
right, at such Holder’s option, to require the Company to repurchase all of such Holder’s
Securities or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) at
a price equal to 100% of the principal amount of the Securities such Holder elects to require the
Company to repurchase, together with accrued and unpaid interest to but excluding the Put Right
Repurchase Date. Holders shall submit their Securities for repurchase to the Paying Agent at any
time from the opening of business on the date that is 25 Business Days prior to the applicable Put
Right Repurchase Date until the close of business on the fifth Business Day prior to the Put Right
Repurchase Date.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, on
and after February 15, 2013, or earlier upon the occurrence of certain conditions specified in the
Indenture and prior to the close of business on the Trading Day immediately preceding the
C-Exh A-6
Maturity Date, to convert any Securities or portion thereof which is $1,000 or an integral
multiple thereof, into cash, Common Shares or a combination of cash and Common Shares, at the
option of the Company as provided in the Sixth Supplemental Indenture, in each case at the
Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture, upon surrender of this Security, together with a Notice of Conversion, a form of which
is attached to this Security, as provided in the Indenture and this Security, to the Company at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of
New York or the City of Boston or elsewhere as provided in the Indenture, and, unless the shares
issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the
Holder or by his duly authorized attorney. The initial Conversion Rate is 13.1203 shares for each
$1,000 principal amount of Securities. No fractional Common Shares will be issued upon any
conversion, but an adjustment in cash will be paid to the Holder, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the surrender of any
Security or Securities for conversion. No adjustment shall be made for dividends or any shares
issued upon conversion of such Security except as provided in the Indenture.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York or the City of Boston, a new Security or
Securities of authorized denominations for an equal aggregate principal amount will be issued to
the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessments or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
C-Exh A-7
Terms used in this Security and defined in the Indenture are used herein as therein defined.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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).
C-Exh A-8
Schedule I
PROLOGIS
2.625% Convertible Senior Notes due 2038
No.
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Notation Explaining |
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Authorized |
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Principal Amount |
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Signature of Trustee |
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Date |
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Principal Amount |
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Recorded |
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or Custodian |
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C-Exh A-9
Schedule I
FORM OF CONVERSION NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into cash, Common Shares, or a combination of cash and shares of Common Shares,
in accordance with the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon such conversion, if any, together with any check in payment of
the cash in respect of the remaining Conversion Obligation (as defined in the Indenture) and for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Security not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Security.
Dated:
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Signature(s) |
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Signature Guarantee |
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Signature(s) must be guaranteed by an
eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as
amended, if Common Shares are to be
issued, or Securities to be
delivered, other than to and in the
name of the registered holder. |
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C-Exh A-10
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Fill in for registration of shares if
to be issued, and Securities if to be
delivered, other than to and in the
name of the registered holder: |
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(Name) |
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(Street Address) |
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(City, State and Zip Code) |
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Please print name and address |
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Principal amount to be converted (if less than
all): $___,000 |
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Social Security or Other Taxpayer Identification Number |
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C-Exh A-11
FORM OF PUT RIGHT REPURCHASE NOTICE
To: PROLOGIS
The undersigned hereby requests and instructs the Company to repay the entire principal amount
of this Security, or a portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, on ___in accordance with the terms of the Indenture referred to in this
Security at the Put Right Repurchase Price, to the registered holder hereof.
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Dated: |
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Signature(s) |
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Social Security or Other Taxpayer
Identification Number Principal amount to be
repaid (if less than all): $___,000 |
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NOTICE: |
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The above signatures of the holder(s) hereof
must correspond with the name as written upon
the face of the Security in every particular
without alteration or enlargement or any
change whatever. |
C-Exh A-12
FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis, to be known as Prologis (the “Company”), as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, in accordance with the terms of the Indenture referred to in
this Security, to the registered holder hereof.
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Dated: |
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Signature(s) |
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Social Security or Other Taxpayer
Identification Number Principal amount to be
repaid (if less than all): $___,000 |
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NOTICE: |
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The above signatures of the holder(s) hereof
must correspond with the name as written upon
the face of the Security in every particular
without alteration or enlargement or any
change whatever. |
C-Exh A-13
FORM OF ASSIGNMENT AND TRANSFER
For value received hereby sell(s), assign(s) and transfer(s) unto (Please
insert social security or Taxpayer Identification Number of assignee) the within Security, and
hereby irrevocably constitutes and appoints attorney to transfer the said
Security on the books of the Company, with full power of substitution in the premises.
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Dated: |
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Signature(s) |
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Signature Guarantee |
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Signature(s) must be guaranteed by an
eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as
amended, if Common Shares are to be
issued, or Securities to be
delivered, other than to and in the
name of the registered holder.
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NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change, the Put Right Notice, or the assignment must correspond with the name as written upon the
face of the Security in every particular without alteration or enlargement or any change whatever.
C-Exh A-14
ANNEX D
3.25% Convertible Senior Notes due 2015
Originally issued March 16, 2010
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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Section 1.01 Relation to Base Indenture |
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1 |
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Section 1.02 Definitions |
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1 |
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ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES |
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5 |
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Section 2.01 Designation and Amount |
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5 |
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Section 2.02 Form of Notes |
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5 |
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Section 2.03 Date and Denomination of Notes; Payments of Interest |
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6 |
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Section 2.04 Intentionally Omitted |
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7 |
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Section 2.05 Execution, Authentication and Delivery of Notes |
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7 |
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Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on
Transfer; Depositary |
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7 |
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Section 2.07 Additional Notes; Repurchases |
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8 |
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Section 2.08 No Sinking Fund |
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8 |
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Section 2.09 Ranking |
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8 |
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ARTICLE III REDEMPTION |
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8 |
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Section 3.01 Right to Redeem |
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8 |
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Section 3.02 Selection of Notes to be Redeemed |
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9 |
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Section 3.03 Notice of Redemption |
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9 |
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ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY |
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9 |
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Section 4.01 Payment of Principal and Interest |
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9 |
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Section 4.02 Maintenance of Office or Agency for Exchange Agent |
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10 |
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Section 4.03 Intentionally Omitted |
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10 |
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Section 4.04 Intentionally Omitted |
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10 |
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Section 4.05 Exclusion of Certain Provisions From Base Indenture |
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10 |
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ARTICLE V DEFAULTS AND REMEDIES |
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10 |
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Section 5.01 Events of Default |
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10 |
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Section 5.02 Article Five of Base Indenture |
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ARTICLE VI SUPPLEMENTAL INDENTURES |
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11 |
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Section 6.01 Supplemental Indentures Without Consent of Noteholders |
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11 |
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Section 6.02 Modification and Amendment with Consent of Noteholders |
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11 |
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D-i
TABLE OF CONTENTS
(continued)
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Section 6.03 Effect of Supplemental Indentures |
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11 |
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Section 6.04 Article Nine of Base Indenture |
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12 |
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ARTICLE VII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE |
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12 |
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Section 7.01 Company May Consolidate, Etc. on Certain Terms |
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12 |
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ARTICLE VIII EXCHANGE OF NOTES |
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12 |
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Section 8.01 Exchange Privilege |
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12 |
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Section 8.02 Exchange Procedures |
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13 |
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Section 8.03 Reserved |
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16 |
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Section 8.04 Adjustment of Exchange Rate |
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Section 8.05 Sufficient Shares to be Delivered |
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24 |
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Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale |
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Section 8.07 Certain Covenants |
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25 |
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Section 8.08 Responsibility of Trustee |
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25 |
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Section 8.09 Notice to Holders Prior to Certain Actions |
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26 |
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Section 8.10 Stockholder Rights Plans |
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27 |
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Section 8.11 Ownership Limit |
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27 |
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ARTICLE IX REPURCHASE OF NOTES AT OPTION OF HOLDERS |
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27 |
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Section 9.01 Intentionally Omitted |
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27 |
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Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change |
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ARTICLE X MISCELLANEOUS PROVISIONS |
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30 |
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Section 10.01 Ratification of Base Indenture |
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30 |
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Section 10.02 Provisions Binding on Company’s Successors |
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31 |
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Section 10.03 Official Acts by Successor Corporation |
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Section 10.04 Addresses for Notices, Etc |
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31 |
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Section 10.05 Governing Law |
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31 |
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Section 10.06 Non-Business Day |
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31 |
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Section 10.07 Benefits of Indenture |
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31 |
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Section 10.08 Table of Contents, Headings, Etc |
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32 |
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Section 10.09 Execution in Counterparts |
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32 |
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D-ii
TABLE OF CONTENTS
(continued)
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Section 10.10 Trustee |
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32 |
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Section 10.11 Further Instruments and Acts |
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32 |
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Section 10.12 Waiver of Jury Trial |
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32 |
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Section 10.13 Force Majeure |
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32 |
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D-iii
3.25% Convertible Senior Notes due 2015
ARTICLE I
DEFINITIONS
Section 1.01 Relation to Base Indenture. This Annex D of the Twelfth Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02 Definitions. For all purposes of this Tenth Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture;
(b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;
(c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Annex D of the Twelfth Supplemental Indenture; and
(d) All other terms used in this Annex D of the Twelfth Supplemental Indenture, which are
defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires) shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of the execution of this Annex D of the Twelfth Supplemental Indenture. The
words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Annex D of the
Twelfth Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the singular.
“Additional Shares” shall have the meaning specified in Section 8.01(g).
“Board of Directors” means the board of directors of Parent or, if Parent shall be succeeded
by a corporation pursuant to Article VII, the board of directors of Parent’s corporate successor or
any committee of such applicable board of directors duly authorized to act generally or in any
particular respect hereunder.
“Board of Trustees” means the board of trustees of the Company or, if the Company shall be
succeeded by a corporation pursuant to Article VII, the board of trustees or directors of the
Company’s corporate successor or any committee of such applicable board duly authorized to act
generally or in any particular respect hereunder.
“Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which
banks in The City of New York or The City of Boston are not required or authorized by law or
executive order to be closed.
D-1
“close of business” means 5:00 p.m. (New York City time).
“Change of Control” shall be deemed to occur upon the consummation of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with which more than
50% of the shares of Common Stock are exchanged for, exchanged into, acquired for or constitutes
solely the right to receive, consideration which is not at least 90% common stock (or American
Depositary Shares representing shares of common stock) that is: (a) listed on, or immediately
after the consummation of such transaction or event, will be listed on, a United States national
securities exchange or (b) approved, or immediately after such transaction or event will be
approved, for listing or quotation on any United States system of automated dissemination of
quotations of securities prices.
“Common Stock” means, subject to Section 8.06, the common stock of Parent, par value $0.01 per
share, at the date of the Twelfth Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of Parent and that are not subject to redemption by Parent;
provided that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
“Company” means ProLogis (to be known as Prologis), a Maryland real estate investment trust,
and subject to the provisions of Article VII, shall include its successors and assigns.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in the Base Indenture as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Annex D of the Twelfth Supplemental Indenture, and thereafter, “Depositary” shall mean or
include such successor.
“Distributed Property” shall have the meaning specified in Section 8.04(c).
“Dividend Threshold Amount” shall have the meaning specified in Section 8.04(d).
“Effective Date” shall have the meaning specified in Section 8.01(g)(1).
“Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.
“Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other equity security
trade on the applicable exchange or in the applicable market, regular way, without the right to
receive such issuance or distribution.
D-2
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Agent” shall mean the Trustee or any successor office or agency where the Notes may
be surrendered for exchange.
“Exchange Date” shall have the meaning specified in Section 8.02(c).
“Exchange Obligation” shall have the meaning specified in Section 8.01(a).
“Exchange Price” means as of any date $1,000 divided by the Exchange Rate as of such date.
“Exchange Rate” shall have the meaning specified in Section 8.01(a).
“Fundamental Change” means a Change of Control or a Termination of Trading.
“Fundamental Change Company Notice” shall have the meaning specified in Section 9.02(b).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 9.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 9.02(a)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 9.02(a).
“Global Note” shall have the meaning specified in Section 2.06(e).
“interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes.
“Interest Payment Date” means March 15 and September 15 of each year, beginning on September
15, 2010.
“Last Reported Sale Price” means, with respect to the shares of Common Stock or any other
security for which a Last Reported Sale Price must be determined, on any date, the closing sale
price per share of the Common Stock or unit of such other security (or, if no closing sale price is
reported, the average of the last bid and last ask prices or, if more than one in either case, the
average of the average last bid and the average last ask prices) on such date as reported in
composite transactions for the principal U.S. securities exchange on which the Common Stock or such
other security is traded. If the Common Stock or such other security are not listed for trading on
a United States national or regional securities exchange on the relevant date, the Last Reported
Sale Price shall be the last quoted bid price per share of Common Stock or such other security in
the over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. If the shares of Common Stock or such other security
D-3
are not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the
last bid and ask prices per share of Common Stock or such other security on the relevant date from
each of at least three nationally recognized independent investment banking firms selected from
time to time by the Board of Trustees for that purpose. The Last Reported Sale Price shall be
determined without reference to extended or after-hours trading.
“Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (New York City time) on such day.
“Maturity Date” means March 15, 2015.
“Noteholder” or “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), means any person in whose name at the time a particular
Note is registered on the Security Register.
“Notice of Exchange” shall have the meaning specified in Section 8.02(c).
“opening of business” means 9:00 a.m. (New York City time).
“Parent” means Prologis, Inc., a Maryland corporation and, subject to the provisions of
Article VII, shall include its successors and assigns.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306 of the Base Indenture in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
“Record Date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.
“Reference Property” shall have the meaning specified in Section 8.06(b).
“Reorganization Event” shall have the meaning specified in Section 8.06.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Spin-Off” shall have the meaning specified in Section 8.04(c).
“Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Exchange Rate as set forth in
Section 8.01(g) hereof, which shall be equal to (i) if holders of shares of Common Stock receive
only cash in such Fundamental Change, the cash amount paid per share of
D-4
Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of the
Common Stock over the five consecutive Trading Day period ending on the Trading Day preceding the
Effective Date of the Fundamental Change.
“Termination of Trading” shall be deemed to occur if the Common Stock, or any Common Stock (or
American Depositary Receipts in respect of Common Stock) into which the Notes are exchangeable
pursuant to the terms of this Annex D of the Twelfth Supplemental Indenture, are not listed for
trading on any of the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select
Market (or any of their respective successors).
“Trading Day” means a day during which (i) trading in Common Stock generally occurs, (ii)
there is no Market Disruption Event and (iii) a Last Reported Sale Price of the Common Stock (other
than a Last Reported Sale Price referred to in the next to last sentence of such definition) is
available for such day; provided that if the shares of Common Stock are not admitted for trading or
quotation on or by any exchange, bureau or other organization referred to in the definition of Last
Reported Sale Price (excluding the next to last sentence of that definition), Trading Day shall
mean any Business Day.
“Trigger Event” shall have the meaning specified in Section 8.04(c).
“Underwriters” means Citigroup Global Markets Inc., Barclays Capital Inc., Deutsche Bank
Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated, RBC Capital
Markets Corporation, Daiwa Securities America Inc., ING Financial Markets LLC, Mitsubishi UFJ
Securities (USA), Inc., Scotia Capital (USA) Inc. and Credit Agricole Securities (USA) Inc.
“Underwriting Agreement” means that certain Underwriting Agreement relating to the Notes,
dated March 9, 2010, between the Company and the Underwriters.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “3.25% Convertible
Senior Notes due 2015.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Annex D of the Twelfth Supplemental Indenture is initially limited to
$460,000,000, subject to Section 2.07 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section
2.06, Section 8.02 and Section 9.02 hereof and Section 306 and Section 906 of to the Base
Indenture.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the form set forth in Exhibit A.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with
D-5
the provisions of this Annex D of the Twelfth Supplemental Indenture, or as may be required by
the Depositary, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.
A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this
Annex D of the Twelfth Supplemental Indenture. Payment of principal and accrued and unpaid
interest on a Global Note shall be made to the Holder of such Note on the date of payment, unless a
Record Date or other means of determining Holders eligible to receive payment is provided for
herein.
The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Annex D of
the Twelfth Supplemental Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Annex D of the Twelfth Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York, which shall initially be an office or agency of the Trustee. The
Company shall pay interest (i) on any Notes in certificated form by check mailed to the address of
the Person entitled thereto as it appears in the Security Register (or upon written application by
such Person to the Security Registrar not later than the relevant record date, by wire transfer in
immediately available funds to such Person’s account within the United States, if such Person is
entitled to interest on an aggregate principal in excess of $1,000,000) or (ii) on any Global Note
by wire transfer of immediately available funds to the account of the Depositary or its nominee.
The term “Record Date” with respect to any Interest Payment Date shall mean the March 1 or
September 1 preceding the applicable March 15 or September 15 Interest Payment Date, respectively.
D-6
Section 2.04 Intentionally Omitted.
Section 2.05 Execution, Authentication and Delivery of Notes. Section 303 of the Base
Indenture shall be applicable to the Notes.
Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.
(a) The Company shall provide for the registration of the Notes and of transfers of the Notes
in the Security Register. Upon surrender for registration of transfer of any Note to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.
No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required
to exchange or register a transfer of (a) any Notes surrendered for exchange or, if a portion of
any Note is surrendered for exchange, such portion thereof surrendered for exchange or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article IX hereof.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Annex D of the Twelfth Supplemental Indenture shall be the valid, binding and legal
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Annex D of the Twelfth Supplemental Indenture as the Notes surrendered upon such registration of
transfer or exchange.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
D-7
(d) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or under applicable law
with respect to any transfer of any interest in any Note 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 instrument, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note, which does not involve the
issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Annex D of the Twelfth Supplemental Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary therefor.
Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, issue additional Notes hereunder with the same terms
and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate
principal amount, which will form the same series with the Notes initially issued hereunder,
provided that no such additional Notes may be issued unless fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes. The Company may also from time to time
repurchase the Notes in open market purchases by tender at any price or by private agreement
without prior notice to Noteholders.
Section 2.08 No Sinking Fund. The provisions of Article Twelve of the Base Indenture shall
not be applicable to the Notes. No sinking fund is provided for the Notes.
Section 2.09 Ranking. The Notes constitute a senior general obligation of the Company,
ranking equally with other existing and future senior and unsubordinated indebtedness of the
Company and ranking senior in right of payment to any future indebtedness of the Company that is
expressly made subordinate to the Notes by the terms of such indebtedness.
ARTICLE III
REDEMPTION
Section 3.01 Right to Redeem.
(a) Notwithstanding any provision of the Base Indenture, as modified by this Annex D of the
Twelfth Supplemental Indenture, to the contrary, the Company may redeem the Notes prior to March
15, 2015, in whole, in order to preserve Parent’s status as a real estate investment trust under
the Code.
(b) Intentionally Omitted.
(c) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest;
D-8
provided, however, that the Company may deduct and withhold from such Redemption Price any
amount required to be deducted and withheld under applicable law.
Section 3.02 Selection of Notes to be Redeemed.
(a) The provisions of Section 1103 of the Base Indenture shall govern the selection of Notes
to be redeemed by the Trustee.
Section 3.03 Notice of Redemption. The provisions of Section 1104 of the Base Indenture shall
govern notices of redemption of the Notes; provided, however, that in addition to the information
specified in Section 1104 of the Base Indenture, notices of redemption of the Notes shall also
state:
(a) the then-current Exchange Price;
(b) the name and address of the Exchange Agent; and
(c) that Holders who wish to exchange Notes must surrender such Notes for exchange no later
than the close of business on the second Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth herein.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest.
(a) Sections 307 and 1001 of the Base Indenture shall apply to the Notes; provided, however,
that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at
the application of such Holder in writing to the Security Registrar not later than the relevant
record date, accrued and unpaid interest on such Holder’s Notes shall be paid by wire transfer in
immediately available funds to such Holder’s account in the United States supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from Trustee); provided further
that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer
in immediately available funds in accordance with such wire transfer instructions and other
procedures provided by the Depositary from time to time.
(b) Except as otherwise provided in this Section 4.01(b), a Holder of any Notes at the close
of business on a Record Date shall be entitled to receive interest on such Notes on the
corresponding Interest Payment Date. A Holder of any Notes as of a Record Date that are exchanged
after the close of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall be entitled to receive interest on the principal amount
of such Notes, notwithstanding the exchange of such Notes prior to such Interest Payment Date.
However, a Holder that surrenders any Notes for exchange between the close of business on a Record
Date and the opening of business on the corresponding Interest Payment Date shall be required to
pay the Company an amount equal to the interest payable by the Company with respect to such Notes
on such Interest Payment Date at the time such Holder
D-9
surrenders such Notes for exchange, provided, however, that this sentence shall not apply to a
Holder that exchanges Notes:
(i) in respect of which the Company has given notice of redemption pursuant to Section
3.03 on a Redemption Date that is after the relevant Record Date and on or prior to the
relevant Interest Payment Date; or
(ii) to the extent of any overdue interest, if any overdue interest exists at the time
of exchange with respect to such Notes;
(iii) in connection with a Fundamental Change in which the Company has specified a Fundamental
Change Repurchase Date that is after a Record Date and on or prior to the next Interest Payment
Date; or
(iv) after 5:00 p.m., New York City time on the Record Date immediately preceding the Maturity
Date.
Accordingly, a Holder that exchanges Notes under any of the circumstances described in clauses (i),
(ii), (iii) or (iv) above will not be required to pay to the Company an amount equal to the
interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.
Section 4.02 Maintenance of Office or Agency for Exchange Agent. If at any time the Exchange
Agent is not the Trustee or an office or agency designated or appointed by the Trustee, the Company
will give prompt written notice to the Trustee of the location of such Exchange Agent. If at any
time the Company shall fail to maintain an office or agency for the Exchange Agent, presentations,
surrenders, notices and demands related to exchanges of Notes may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan, the City
of New York, initially located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Division.
Section 4.03 Intentionally Omitted.
Section 4.04 Intentionally Omitted.
Section 4.05 Exclusion of Certain Provisions From Base Indenture. Section 1004, Section 1006,
Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002,
Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second
Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture
shall be applicable to the Notes.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default. The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to
D-10
the events described in clauses (1), (4), (5) (as amended by the Ninth Supplemental Indenture to
the Base Indenture), (6) (as amended by the Ninth Supplemental Indenture to the Base Indenture),
(7) and (8) of Section 501 of the Base Indenture, shall be Events of Default with respect to the
Notes:
(a) default in the payment of principal or premium, if any, of any Note when due and payable
on the Maturity Date, upon redemption, repurchase, declaration or otherwise;
(b) failure by the Company to comply with its obligation to exchange the Notes into Common
Stock upon exercise of a Holder’s exchange right, and such failure continues for a period of ten
days; or
(c) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.02 when due, and such failure continues for a period of two days.
Section 5.02 Article Five of Base Indenture. Except as amended by Section 5.01 hereof, all of
the provisions of Article Five of the Base Indenture shall be applicable to the Notes.
ARTICLE VI
SUPPLEMENTAL INDENTURES
Section 6.01 Supplemental Indentures Without Consent of Noteholders. The provisions of
Section 901 of the Base Indenture shall be applicable to the Notes.
Section 6.02 Modification and Amendment with Consent of Noteholders. Section 902 of the Base
Indenture shall be applicable to the Notes. As contemplated by Sections 301 and 902 of the Base
Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding
Note affected thereby:
(a) make any change that adversely affects the exchange rights of any Notes;
(b) reduce the Fundamental Change Repurchase Price or Redemption Price of any Note, or amend
or modify in any manner adverse to Noteholders the Company’s obligation to make such payments or
Article III or Article IX of this Annex D of the Twelfth Supplemental Indenture, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise.
Section 6.03 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, the Base Indenture and this Annex D of the Twelfth Supplemental
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a
part of this Annex D of the Twelfth Supplemental Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
D-11
Section 6.04 Article Nine of Base Indenture. Except as amended by this Article VI, all of the
provisions of Article Nine of the Base Indenture shall be applicable to the Notes.
ARTICLE VII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base
Indenture shall be applicable to the Notes.
ARTICLE VIII
EXCHANGE OF NOTES
Section 8.01 Exchange Privilege.
(a) Subject to the conditions described in Section 8.11 hereof, and upon compliance with the
provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option,
to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an
integral multiple thereof) of such Note at any time prior to the close of business on the scheduled
Trading Day immediately preceding the Maturity Date at a rate (the “Exchange Rate”) of 25.8244
shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per
$1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the
periods set forth below.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) In the event that the Company has delivered a notice of redemption in accordance with
Section 1104 of the Base Indenture and Section 3.03 of this Annex D of the Twelfth Supplemental
Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the
close of business on the second Business Day immediately preceding the corresponding Redemption
Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase
Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the
Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex D of
the Twelfth Supplemental Indenture.
(e) Intentionally Omitted.
(f) Intentionally Omitted.
(g) (1) If a Noteholder elects to exchange Notes in connection with a Fundamental Change, the
Exchange Rate applicable to each $1,000 principal amount of Notes so exchanged shall be increased
by an additional number of shares of Common Stock (the “Additional Shares”) as described below.
Settlement of Notes tendered for exchange to which Additional Shares shall be added to the Exchange
Rate as provided in this subsection shall be
D-12
settled pursuant to Section 8.02 below, as applicable.
For purposes of this Section 8.01(g), an
exchange shall be deemed to be “in connection with” a Fundamental Change to the extent that
the related exchange notice is delivered during the time period beginning on the 30th Trading Day
prior to the anticipated Effective Date of such Fundamental Change and ending on the related
Fundamental Change Repurchase Date, inclusive. Such exchange notice shall indicate that the Holder
of Notes has elected to exchange Notes in connection with a Fundamental Change; provided, however,
that the failure to so indicate shall not in any way affect the Exchange Obligation or the right of
such Holder to receive Additional Shares in connection with such exchange. The Company shall give
notice to all record Noteholders and the Trustee and issue a press release of the Fundamental
Change no later than 30 scheduled Trading Days prior to the anticipated effective date of the
Fundamental Change.
(i) The number of Additional Shares by which the Exchange Rate will be increased shall
be determined by reference to the table attached as Schedule A hereto, based on the date on
which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the
Stock Price; provided, that if the Stock Price is between two Stock Price amounts in the
table or the Effective Date is between two Effective Dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between the number of
Additional Shares set forth for the next higher and next lower Stock Price amounts and the
two nearest Effective Dates, as applicable, based on a 365-day year; provided further that
if (1) the Stock Price is greater than $89.61 per share of Common Stock (subject to
adjustment in the same manner as set forth in Section 8.04), no Additional Shares will be
added to the Exchange Rate, and (2) the Stock Price is less than $30.02 per share of Common
Stock (subject to adjustment in the same manner as set forth in Section 8.04), no Additional
Shares will be added to the Exchange Rate. Notwithstanding the foregoing, in no event will
the total number of shares of Common Stock issuable upon exchange exceed 33.3134 per $1,000
principal amount of Notes (subject to adjustment in the same manner as set forth in clauses
(a), (b) and (c) of Section 8.04).
(ii) The Stock Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Exchange Rate of the Notes is adjusted. The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Exchange Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Exchange Rate as so adjusted. The number of Additional Shares
within the table shall be adjusted in the same manner as the Exchange Rate as set forth in
Section 8.04 (other than by operation of an adjustment to the Exchange Rate by adding
Additional Shares).
Section 8.02 Exchange Procedures.
(a) (1) The Company shall settle its Exchange Obligations entirely in shares of Common Stock.
In satisfying its Exchange Obligations, the Company shall deliver a number of shares of Common
Stock equal to (i) the aggregate principal amount of Notes to be exchanged divided by $1,000,
multiplied by (ii) the applicable Exchange Rate (which shall include any increases to reflect any
Additional Shares that such Holder is entitled to receive
D-13
pursuant to Section 8.01(g) above). The
Company shall deliver such shares of Common Stock,
together with any cash in lieu of fractional shares of Common Stock as set forth pursuant to
clause (k) below, on the third Business Day immediately following the applicable Exchange Date.
Notwithstanding the preceding sentence, if any calculation required in order to determine the
number of shares of Common Stock to be delivered by the Company in respect of a particular exchange
is based upon data that will not be available to the Company on the applicable Exchange Date, the
Company shall be entitled to delay settlement of that exchange until the third Business Day after
the relevant data become available.
(b) Intentionally Omitted.
(c) Before any Holder of a Note shall be entitled to exchange the same as set forth above,
such Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and Section
8.02(i) and, if required, pay all taxes or duties, if any, and (2) in the case of a Note issued in
certificated form, (A) complete and manually sign and deliver an irrevocable written notice to the
Exchange Agent in the form on the reverse of such certificated Note (or a facsimile thereof) (a
“Notice of Exchange”) at the office of the Exchange Agent and shall state in writing therein the
principal amount of Notes to be exchanged and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon
settlement of the Exchange Obligation to be registered, (B) surrender such Notes, duly endorsed to
the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the
office of the Exchange Agent, (C) if required, pay funds equal to interest payable on the next
Interest Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and
Section 8.02(i), and (D) if required, pay all taxes or duties, if any. A Note shall be deemed to
have been exchanged immediately prior to the close of business on the date (the “Exchange Date”)
that the Holder has complied with the requirements set forth in this Section 8.02(c).
No Notice of Exchange with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Fundamental Change Repurchase Notice and not validly withdrawn such
Fundamental Change Repurchase Notice in accordance with the applicable provisions of Section 9.02.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the
Exchange Obligation with respect to such Notes, if any, that shall be payable upon exchange shall
be computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so surrendered.
(d) Delivery of the amounts owing in satisfaction of the Exchange Obligation shall be made by
the Company in no event later than the date specified in Section 8.02(a). The Company shall make
such delivery by issuing, or causing to be issued, and delivering to the Exchange Agent or to such
Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the
Depositary for the number of full shares of Common Stock to which such Holder shall be entitled as
part of such Exchange Obligation (together with any cash in lieu of fractional shares).
D-14
(e) In case any Note shall be surrendered for partial exchange, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unexchanged portion of the surrendered Notes.
(f) If a Holder submits a Note for exchange, the Company shall pay all stamp and other duties,
if any, which may be imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon
the exchange. However, the Holder shall pay any such tax that is due because the Holder requests
any shares of Common Stock to be issued in a name other than the Holder’s name. The Exchange Agent
may refuse to deliver the certificates representing the shares of Common Stock being issued in a
name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the Holder’s name. Nothing
herein shall preclude any tax withholding required by law or regulations.
(g) Except as provided in Section 8.04, no adjustment shall be made for dividends on any
shares issued upon the exchange of any Note as provided in this Article.
(h) Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
exchange of Notes effected through any Exchange Agent other than the Trustee.
(i) Upon exchange, a Noteholder will not receive any separate cash payment for accrued and
unpaid interest, except as set forth below. The Company’s settlement of its Exchange Obligation as
described above shall be deemed to satisfy its obligation to pay the principal amount of the Note
and accrued and unpaid interest to, but not including, the Exchange Date. As a result, accrued and
unpaid interest to, but not including, the Exchange Date shall be deemed to be paid in full rather
than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence, if Notes are
exchanged after the close of business on a Record Date, Holders of such Notes as of the close of
business on the Record Date will receive the interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the exchange. Notes surrendered for exchange during the
period from the close of business on any regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on the Notes so exchanged; provided, however, that no such payment need be made
(1) if the Company has called the Notes for redemption or (2) to the extent of any overdue interest
existing at the time of exchange with respect to such Note, (3) to Notes surrendered for exchange
in connection with a Fundamental Change in which the Company has specified a Fundamental Change
Repurchase Date that is after a Record Date and on or prior to the next Interest Payment Date, or
(4) to Notes surrendered for exchange after 5:00 p.m., New York City time on the Record Date
immediately preceding the Maturity Date. Except as described above, no payment or adjustment will
be made for accrued interest on exchanged Notes.
D-15
(j) The Person in whose name the certificate for any shares of Common Stock issued upon
exchange is registered shall be treated as a stockholder of record on and after the Exchange Date;
provided, however, that no surrender of Notes on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons entitled to receive
the shares of Common Stock upon such exchange as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such stock transfer books
are open; such exchange shall be at the Exchange Rate in effect on the date that such Notes shall
have been surrendered for exchange, as if the stock transfer books of the Company had not been
closed. Upon exchange of Notes, such Person shall no longer be a Noteholder.
(k) No fractional shares of Common Stock shall be issued upon exchange of any Note or Notes.
If more than one Note shall be surrendered for exchange at one time by the same Holder, the number
of full shares that shall be issued upon exchange thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock that would otherwise be issued upon exchange of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction
of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the
Exchange Date.
(l) Reserved.
Section 8.03 Reserved.
Section 8.04 Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to
time by the Company as follows:
(a) In case Parent shall issue Common Stock as a dividend or distribution to holders of the
outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common
Stock or combination into a lesser number of shares of Common Stock, the Exchange Rate shall be
adjusted based on the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect immediately prior to the Ex-Date for
such dividend or distribution or the effective date of such share split or
combination, as the case may be; |
|
|
ER' |
= |
the Exchange Rate in effect as of the Ex-Date for such dividend or
distribution or the effective date of such share split or combination, as the
case may be; |
D-16
|
OS0 |
= |
the number of shares of Common Stock outstanding immediately prior
to such event; and |
|
|
OS¢ |
= |
the number of shares of Common Stock outstanding immediately after such
event. |
Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Business Day following the record date fixed for such determination. If any dividend or
distribution of the type described in this Section 8.04(a) is declared but not so paid or made, or
the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the
Exchange Rate shall be immediately readjusted, effective as of the date the Board of Trustees
determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares
of Common Stock, as the case may be, to the Exchange Rate that would then be in effect if such
dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common
Stock any rights, warrants or convertible securities entitling them (for a period expiring within
sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common
Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the
Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate
shall be adjusted based on the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect immediately prior to the Ex-Date for
such distribution; |
|
|
ER¢ |
= |
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
OS0 |
= |
the number of shares of Common Stock outstanding immediately prior
to such event; |
|
|
X |
= |
the total number of shares of Common Stock issuable pursuant
to
such rights, warrants or convertible securities; and |
|
|
Y |
= |
the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights, warrants or convertible securities
divided by the average of the Last Reported Sale Prices per share of Common
Stock over the ten consecutive Trading Day period ending on the Business Day
immediately preceding the record date (or, if later, the Ex-Date relating to
such distribution) for the issuance of such rights, warrants or convertible
securities. |
Such adjustment shall be successively made whenever any such rights, warrants or convertible
securities are issued and shall become effective immediately after 9:00 a.m., New York City time,
on the Business Day following the date fixed for such determination. If such rights,
D-17
warrants or convertible securities are not so exercised prior to their expiration, the Exchange
Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such record
date for such distribution had not been fixed.
In determining whether any rights, warrants or convertible securities entitle the holder
thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Last
Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of
announcement of such issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by Parent for such
rights, warrants or convertible securities and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of
Trustees.
(c) In case Parent shall distribute to all or substantially all holders of its Common Stock
shares of Capital Stock, evidences of its indebtedness or other assets or property of Parent
(including securities, but excluding dividends and distributions covered by Section 8.04(a),
Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with
respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or
property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such
case the Exchange Rate shall be adjusted based on the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect immediately prior to the Ex-Date for
such distribution; |
|
|
ER¢ |
= |
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
SP0 |
= |
the average of the Last Reported Sale Prices of the Common Stock
over the ten consecutive Trading Day period ending on the Business Day
immediately preceding the record date for such distribution (or, if earlier,
the Ex-Date relating to such distribution); and |
|
|
FMV |
= |
the fair market value (as determined by the Board of
Trustees) of the Distributed Property distributed with respect to each
outstanding share of Common Stock on the record date for such distribution (or,
if earlier, the Ex-Date relating to such distribution). |
Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the
Business Day following the date fixed for the determination of stockholders entitled to receive
such distribution; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one share of Common Stock is
D-18
equal to or greater than SP0 as set forth above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder shall have the right to receive, for each
$1,000 principal amount of Notes upon exchange, the amount of Distributed Property such Holder
would have received had such Holder owned a number of shares of Common Stock equal to the Exchange
Rate on the record date. If such dividend or distribution is not so paid or made, the Exchange Rate
shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Trustees determines the fair market value of
any distribution for purposes of this Section 8.04(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in determining SP0 above.
With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of Capital Stock, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), unless the
Company distributes such shares of Capital Stock or equity interests to each Noteholder on the same
basis as such Noteholder would have received had it exchanged its Notes solely into shares of
Common Stock immediately prior to such dividend or distribution, the Exchange Rate in effect
immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of
stockholders entitled to receive the distribution will be increased based on the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect immediately prior to such distribution; |
|
|
ER¢ |
= |
the Exchange Rate in effect immediately after such distribution; |
|
|
FMV0 |
= |
the average of the Last Reported Sale Prices of the Capital Stock
or similar equity interest distributed to holders of shares of Common Stock
applicable to one share of Common Stock over the first ten consecutive Trading
Day period after the effective date of the Spin-Off; and |
|
|
MP0 |
= |
the average of the Last Reported Sale Prices of the Common Stock
over the first ten consecutive Trading Day period after the effective date of
the Spin-Off. |
Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any exchange within the ten Trading Days following any
Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between such Spin-Off and the Exchange Date in
determining the applicable Exchange Rate.
Rights or warrants distributed by Parent to all holders of Common Stock, entitling the holders
thereof to subscribe for or purchase shares of Common Stock (either initially or under
D-19
certain circumstances), which rights or warrants, until the occurrence of a specified event or
events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii)
are not exercisable; and (iii) are also issued in respect of future issuances of shares of Common
Stock, shall be deemed not to have been distributed for purposes of this Section 8.04 (and no
adjustment to the Exchange Rate under this Section 8.04 will be required) until the occurrence of
the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made
under this Section 8.04(c). If any such right or warrant, including any such existing rights or
warrants distributed prior to the date of this Annex D of the Twelfth Supplemental Indenture, are
subject to events, upon the occurrence of which such rights or warrants become exercisable to
purchase different securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of distribution and record
date with respect to new rights or warrants with such rights (and a termination or expiration of
the existing rights or warrants without exercise by any of the holders thereof). In addition, in
the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event
or other event (of the type described in the preceding sentence) with respect thereto that was
counted for purposes of calculating a distribution amount for which an adjustment to the Exchange
Rate under this Section 8.04 was made, (1) in the case of any such rights or warrants that shall
all have been redeemed or repurchased without exercise by any holders thereof, the Exchange Rate
shall be readjusted upon such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights
or warrants that shall have expired or been terminated without exercise by any holders thereof, the
Exchange Rate shall be readjusted as if such rights and warrants had not been issued.
For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or
distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock
to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of
Common Stock to which Section 8.04(a) or Section 8.04(b) applies (or both), shall be deemed instead
to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital
Stock other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies
(and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Exchange Rate adjustment
required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall
then be made), except (A) the record date of such dividend or distribution shall be substituted as
“the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a)
and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to such event” within the meaning of Section
8.04(a).
(d) In case Parent shall pay a dividend or make a distribution consisting exclusively of cash
to all or substantially all holders of its Common Stock to the extent that the aggregate of all
such cash dividends or distributions paid in any quarter exceeds
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the Dividend Threshold Amount for such quarter, the Exchange Rate shall be adjusted based on
the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect immediately prior to the Ex-Date for
such distribution; |
|
|
ER¢ |
= |
the Exchange Rate in effect as of the Ex-Date for such distribution; |
|
|
SP0 |
= |
the average of the Last Reported Sale Prices of the Common Stock
over the period of ten consecutive Trading Days ending the Business Day
immediately preceding the record date (as defined in clause (f) of this
Section) for such distribution (or, if earlier, the Ex-Date relating to such
distribution); |
|
|
T |
= |
the dividend threshold amount (“Dividend Threshold Amount”),
which amount shall initially be $0.3360 per quarter and which shall be
appropriately adjusted from time to time for any stock dividends on, or
subdivisions or combinations of, Common Stock; provided, that if an Exchange
Rate adjustment is required to be made as a result of a distribution that is
not a quarterly dividend either in whole or in part, the Dividend Threshold
Amount shall be deemed to be zero; and |
|
|
C |
= |
the amount in cash per share that Parent distributes to
holders of Common Stock. |
Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the
record date for such dividend or distribution; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than SP0
above, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon exchange of a Note (or any portion thereof) the
amount of cash such Holder would have received had such Holder owned a number of shares equal to
the Exchange Rate on the record date. If such dividend or distribution is not so paid or made, the
Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such
dividend or distribution had not been declared.
For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become exhangeable into more
than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this
Section 8.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
exchangeable equal to the number of shares of such class issued in respect of one
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share of Common Stock in such reclassification. The above provisions of this paragraph shall
similarly apply to successive reclassifications.
(e) In case Parent or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for all or any portion of the shares of Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of Common Stock exceeds the
Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), the Exchange Rate shall be increased based on the following formula:
where
|
ER0 |
= |
the Exchange Rate in effect on the date such tender or exchange
offer expires; |
|
|
ER¢ |
= |
the Exchange Rate in effect on the day next succeeding the date such
tender or exchange offer expires; |
|
|
AC |
= |
the aggregate value of all cash and any other consideration
(as determined by the Board of Trustees) paid or payable for shares purchased
in such tender or exchange offer; |
|
|
OS0 |
= |
the number of shares of Common Stock outstanding immediately prior
to the date such tender or exchange offer expires; |
|
|
OS¢ |
= |
the number of shares of Common Stock outstanding immediately after the
date such tender or exchange offer expires; and |
|
|
SP¢ |
= |
the average of the Last Reported Sale Prices of the Common Stock over
the ten consecutive Trading Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer expires, |
such adjustment to become effective immediately prior to the opening of business on the day
following the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer. If Parent is obligated to purchase shares pursuant to any such tender or exchange
offer, but Parent is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Exchange Rate shall again be
adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had
not been made or had only been made in respect of the purchases that had been effected. No
adjustment to the Exchange Rate will be made if the application of the foregoing formulae would
result in a decrease in the Exchange Rate.
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(f) For purposes of this Section 8.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the shares of Common Stock (or
other applicable securities) are 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) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section 8.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York
Stock Exchange, the Company from time to time may increase the Exchange Rate by any amount for a
period of at least 20 days if the Board of Trustees determines that such increase would be in the
Company’s best interest. In addition, the Company may also (but is not required to) increase the
Exchange Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase
shares of Common Stock in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event. Whenever the Exchange Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Holder of each Note at his last address appearing
on the Security Register a notice of the increase at least five days prior to the date the
increased Exchange Rate takes effect, and such notice shall state the increased Exchange Rate and
the period during which it will be in effect.
(h) All calculations and other determinations under this Article VIII shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share of stock, as the case may be. No adjustment shall be made for Parent’s issuance of shares of
Common Stock or any securities convertible into or exchangeable for shares of Common Stock, or the
right to purchase shares of Common Stock or such convertible or exchangeable securities, other than
as provided in this Section 8.04. No adjustment shall be made to the Exchange Rate unless such
adjustment would require a change of at least 1% in the Exchange Rate then in effect at such time.
The Company shall carry forward any adjustments that are less than 1% of the Exchange Rate and make
such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%
within one year of the first such adjustment carried forward, upon a Fundamental Change, upon any
call of the Notes for redemption or upon maturity.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting
forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. The Trustee and Exchange Agent may conclusively rely on the accuracy of
the Exchange Rate adjustment provided by the Company. Unless and until a Responsible Officer of
the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Exchange Rate and may assume without inquiry that the last
Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Exchange Rate setting
forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Exchange Rate to the Holder of each Note at his last
address appearing on the
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Security Register, within thirty (30) days of the effective date of such adjustment. Failure
to deliver such notice shall not affect the legality or validity of any such adjustment.
(j) For purposes of this Section 8.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of Parent but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
Notwithstanding the foregoing provisions of this Section 8.04, in no event will the total
number of shares of Common Stock issuable upon exchange exceed 33.3134 per $1,000 principal amount
of Notes (subject to adjustment in the same manner or as set forth in clauses (a), (b) and (c) of
this Section 8.04).
Section 8.05 Sufficient Shares to be Delivered. To the extent the Company elects to deliver
shares of Common Stock, and subject to Section 8.02(k), the Company shall provide, free from
preemptive rights, sufficient shares of Common Stock to provide for exchange of the Notes from time
to time as such Notes are presented for exchange.
Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely (i) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (ii) any consolidation, merger or
combination of Parent with another Person, or (iii) any sale or conveyance of all or substantially
all of the property and assets of Parent to any other Person, in each case as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or other property,
assets or cash (or any combination thereof) with respect to or in exchange for such shares of
Common Stock (any such event a “Reorganization Event”), then:
(a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which, as evidenced in an Opinion of Counsel delivered to the
Trustee, shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so comply) providing for
the exchange and settlement of the Notes as set forth in this Annex D of the Twelfth Supplemental
Indenture. Such supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article and the Trustee
may conclusively rely on the determination by the Company of the equivalency of such adjustments.
If, in the case of any Reorganization Event, the Reference Property includes shares of stock or
other securities and assets of a corporation other than the successor or purchasing corporation, as
the case may be, in such reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders of the Notes as
the Board of Trustees shall reasonably consider necessary by reason of the foregoing, including to
the extent required by the Board of Trustees and practicable the provisions providing for the
repurchase rights set forth in Article IX herein.
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In the event the Company shall execute a supplemental indenture pursuant to this Section 8.06,
the Company shall, in addition to the Officers’ Certificate and Opinion of Counsel required by
Section 102 of the Base Indenture, file with the Trustee an Officers’ Certificate briefly stating
the kind or amount of cash, securities or property or asset that will constitute the Reference
Property after any such Reorganization Event, any adjustment to be made with respect thereto, and
the Trustee shall promptly mail notice thereof to all Noteholders.
(b) Notwithstanding the provisions of Section 8.02(a), and subject to the provisions of
Section 8.01, at the effective time of such Reorganization Event, the right to exchange each $1,000
principal amount of Notes will be changed to a right to exchange such Note by reference to the kind
and amount of stock, other securities or other property, assets or cash (or any combination
thereof) that such holder of Notes would have owned immediately after such Reorganization Event if
such holder had exchanged their Notes immediately prior to such Reorganization Event (the
“Reference Property”). For purposes of the foregoing, where a Reorganization Event involves
consideration based upon any form of stockholder election, the consideration will be deemed to be
the weighted average of the types and amounts of consideration received by the holders of shares of
Common Stock that affirmatively make such an election. Parent shall not become a party to any such
transaction unless its terms are consistent with the preceding. None of the foregoing provisions
shall affect the right of a Holder of Notes to exchange its Notes in accordance with the provisions
of Article VIII hereof prior to the effective date of a Reorganization Event. For the avoidance of
doubt, adjustments to the Exchange Rate set forth under Section 8.04 do not apply to distributions
to the extent that the right to exchange Notes has been changed into the right to exchange into
Reference Property.
(c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Security Register, within thirty (30)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
(d) The above provisions of this Section shall similarly apply to successive Reorganization
Events.
Section 8.07 Certain Covenants. The Company covenants that all shares of Common Stock
delivered upon exchange of Notes will be fully paid and non-assessable by Parent and free from all
taxes, liens and charges with respect to the issue thereof.
Section 8.08 Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at
any time be under any duty or responsibility to any Noteholder to determine the Exchange Rate or
whether any facts exist which may require any adjustment of the Exchange Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Exchange Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any
other Exchange Agent make no representations with respect thereto. Neither the Trustee nor any
Exchange Agent shall be responsible for any failure of the Company to transfer or deliver any
shares of Common Stock or
D-25
share certificates or other securities or property or cash upon the surrender of any Note for
the purpose of exchange or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Noteholders upon the
exchange of their Notes after any event referred to in such Section 8.06 or to any adjustment to be
made with respect thereto, but, subject to the provisions of Article Six of the Base Indenture, may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate with respect thereto.
Section 8.09 Notice to Holders Prior to Certain Actions.
In case:
(a) Parent shall declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Exchange Rate pursuant to Section 8.04; or
(b) Parent shall authorize the granting to all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other rights or warrants;
(c) of any reclassification of the Common Stock (other than a subdivision or combination of
its outstanding Common Stock, or a change in par value, or from par value to no par value, or from
no par value to par value), or of any consolidation or merger to which Parent is a party and for
which approval of any stockholders of Parent is required, or of the sale or transfer of all or
substantially all of the assets of Parent; or
(d) of the voluntary or involuntary dissolution, liquidation or winding-up of Parent,
the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Security Register as promptly as possible but in any event at least thirty
(30) days prior to the applicable date specified in clause (x) or (y) below, as the case may be, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.
D-26
Section 8.10 Stockholder Rights Plans. Upon exchange of the Notes, the Holders shall receive,
in addition to any shares of Common Stock issuable upon such exchange, the associated rights issued
under any future stockholder rights plan Parent adopts unless, prior to exchange, the rights have
separated from the shares of Common Stock, expired, terminated or been redeemed or converted in
accordance with such rights plan. If, and only if, the Holders receive rights under such
stockholder rights plans as described in the preceding sentence upon exchange of their Notes, then
no other adjustment pursuant to this Article VIII shall be made in connection with such stockholder
rights plans.
Section 8.11 Ownership Limit. Notwithstanding any other provision of this Annex D of the
Twelfth Supplemental Indenture or the Notes (a) no Holder of Notes (or beneficial owner of Notes)
shall be entitled to exchange such Notes for shares of Common Stock to the extent that receipt of
such shares would cause such Holder (or beneficial owner of Notes) (together with such Holder’s (or
beneficial owner’s) affiliates) to exceed the applicable ownership limit contained in the articles
of incorporation of Parent and (b) no Holder of Notes (or beneficial owner of Notes) shall have any
right to receive cash or other consideration in lieu of Common Stock upon exchange of the Notes to
the extent such exchange would otherwise cause (if fully exchanged into Common Stock) such Holder
(together with such Holder’s Affiliates) to exceed such ownership limit; provided that any such
Holder shall be entitled to receive on the same basis as other Holders cash paid upon redemption or
a repurchase upon a Fundamental Change.
ARTICLE IX
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 9.01 Intentionally Omitted.
Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Noteholder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20)
Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).
Repurchases of Notes under this Section 9.02 shall be made, at the option of the Holder
thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form
set forth on the reverse of the Note prior to the close of business on the Fundamental
Change Repurchase Date; and
D-27
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements) at the Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such
delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase
Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid
pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying
Agent appointed by the Company) shall conform in all respects to the description thereof in
the related Fundamental Change Repurchase Notice.
The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for
repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must
be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Annex D of the Twelfth Supplemental
Indenture.
Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.02
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 9.02(c).
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, 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 Note so surrendered.
(b) On or before the twentieth day after the occurrence of any Fundamental Change, the Company
shall provide to all Holders of record of the Notes and the Trustee and Paying Agent a notice (the
“Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the
repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be
by first class mail. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall publish a notice containing the information included therein once in a newspaper of
general circulation in The
D-28
City of New York or publish such information on the Company’s website or through such other
public medium as the Company may use at such time.
Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) that the Holder must exercise the repurchase right on or prior to the close of
business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Exchange Agent;
(vii) the applicable Exchange Rate and any adjustments to the applicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has
been delivered by a Holder may be exchanged only if the Holder withdraws the Fundamental
Change Repurchase Notice in accordance with the terms of this Annex D of the Twelfth
Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their
Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Trustee and Paying Agent in accordance with the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes; and
(iii) the principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000;
D-29
provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the second Business Day
following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or
other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this
Annex D of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the
Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the
Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made
promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note
(provided the Holder has satisfied the conditions to the payment of the Fundamental Change
Repurchase Price in Section 9.02), and (y) the time of book-entry transfer or the delivery of such
Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the
manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such
Notes entitled thereto as they shall appear in the Security Register, provided, however, that
payments to the Depositary shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon
written demand by the Company, return to the Company any funds in excess of the Fundamental Change
Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities
sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions
thereof that are to be purchased as of the second Business Day following the Fundamental Change
Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease
to be Outstanding, (ii) interest will cease to accrue on such Notes, and (iii) all other rights of
the Holders of such Notes will terminate, whether or not book-entry transfer of the Notes has been
made or the Notes have been delivered to the Trustee or Paying Agent, other than the right to
receive the Fundamental Change Repurchase Price upon delivery of the Notes.
(f) The provisions of Article Thirteen of the Base Indenture shall not be applicable to the
Notes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Ratification of Base Indenture. Except as expressly modified or amended hereby,
the Base Indenture continues in full force and effect and is in all respects confirmed, ratified
and preserved and the provisions thereof shall be applicable to the Notes and this Annex D of the
Twelfth Supplemental Indenture. Without limiting the generality of the foregoing, the Notes shall
have the benefit of Article Three of the Second Supplemental Indenture to the Base Indenture in
accordance with its terms.
D-30
Section 10.02 Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Annex D of the Twelfth Supplemental
Indenture shall bind its successors and assigns whether so expressed or not.
Section 10.03 Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Annex D of the Twelfth Supplemental Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation or entity
that shall at the time be the lawful sole successor of the Company.
Section 10.04 Addresses for Notices, Etc. Any notice or demand which by any provision of this
Annex D of the Twelfth Supplemental Indenture is required or permitted to be given or served by the
Trustee or by the Noteholders on the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is filed by the Company
with the Trustee) to ProLogis, 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by being deposited
postage prepaid by registered or certified mail in a post office letter box addressed to U.S. Bank
National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Services/ProLogis.
The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Security Register and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
Section 10.05 Governing Law. THIS ANNEX D OF THE TWELFTH SUPPLEMENTAL INDENTURE AND EACH NOTE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED THEREIN.
Section 10.06 Non-Business Day. Section 113 of the Base Indenture shall also apply to any
Fundamental Change Purchase Date or Exchange Date in respect of the Notes.
Section 10.07 Benefits of Indenture. Nothing in this Annex D of the Twelfth Supplemental
Indenture or in the Notes, expressed or implied, shall give to any person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Security Registrar and their successors
hereunder, the Noteholders, any benefit or any legal or equitable right, remedy or claim under this
Annex D of the Twelfth Supplemental Indenture.
D-31
Section 10.08 Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Annex D of the Twelfth Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.09 Execution in Counterparts. This Annex D of the Twelfth Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 10.10 Trustee. The Trustee makes no representations as to the validity or sufficiency
of this Annex D of the Twelfth Supplemental Indenture. The statements and recitals herein are
deemed to be those of the Company and not of the Trustee.
Section 10.11 Further Instruments and Acts. Upon request of the Trustee, the Company and
Parent 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 Annex D of the
Twelfth Supplemental Indenture.
Section 10.12 Waiver of Jury Trial. EACH OF THE COMPANY, PARENT AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.13 Force Majeure. In no event shall the Trustee or Exchange Agent be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
D-32
SCHEDULE A
Share Price
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Effective Date |
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$30.02 |
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$33.60 |
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$39.20 |
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$44.80 |
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$50.40 |
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$56.00 |
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$61.60 |
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$67.20 |
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$72.80 |
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$78.41 |
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$84.01 |
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$89.61 |
March 15, 2012 |
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7.4890 |
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5.5791 |
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3.2283 |
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1.8584 |
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1.0561 |
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0.5852 |
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0.3098 |
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0.1507 |
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0.0624 |
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0.0177 |
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0.0000 |
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0.0000 |
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March 15, 2013 |
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7.4890 |
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5.2539 |
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2.8142 |
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1.4675 |
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0.7374 |
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0.3488 |
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0.1475 |
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0.0494 |
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0.0078 |
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0.0000 |
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0.0000 |
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0.0000 |
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March 15, 2014 |
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7.4890 |
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4.6911 |
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2.0996 |
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0.8440 |
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0.2940 |
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0.0788 |
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0.0092 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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March 15, 2015 |
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7.4890 |
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3.9356 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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D-Sch A-1
EXHIBIT A
[FORM OF FACE OF NOTE]
[Include only for Global Notes]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
D-Exh A-1
PROLOGIS
3.25% Convertible Senior Notes due 2015
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No. _____
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$ ____________ |
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CUSIP No. 743410 AY8 |
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PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.], or registered assigns, the principal sum of [____] ($[____]) or such other principal amount
as shall be set forth on the Schedule I hereto on March 15, 2015.
This Security shall bear interest at the rate of 3.25% per year from March 16, 2010, or from
the most recent date to which interest had been paid or provided. Interest is payable
semi-annually in arrears on each March 15 and September 15, commencing September 15, 2010, to
Holders of record at the close of business on the preceding March 1 and September 1, respectively.
Interest payable on each Interest Payment Date shall equal the amount of interest accrued from, and
including the immediately preceding Interest Payment Date (or from and including March 16, 2010, if
no interest has been paid hereon) to but excluding such Interest Payment Date.
Payment of the principal and interest, on this Security will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, City of New York, or
elsewhere as provided in the Indenture, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts; provided, however,
that at the option of the Company, payment of interest, may be made by (i) check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register or
(ii) transfer to an account of the Person entitled thereto located inside the United States;
provided further, however, that, with respect to any Holder of Securities with an aggregate
principal amount in excess of $1,000,000, at the application of such Holder in writing to the
Company, interest on such Holder’s Securities shall be paid by wire transfer in immediately
available funds to such Holder’s account in the United States supplied by such Holder from time to
time to the Trustee and Paying Agent (if different from the Trustee) not later than the applicable
record date.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into Common Shares of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.
D-Exh A-2
This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.
This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the
undersigned officer.
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PROLOGIS
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By: |
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Name: |
[_____] |
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Title: |
[_____] |
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Attest
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By: |
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Name: |
[_____] |
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Title: |
[_____] |
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Dated: [_____], 20[__]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as successor trustee
D-Exh A-3
[FORM OF REVERSE OF NOTE]
PROLOGIS
3.25% Convertible Senior Notes due 2015
This Security is one of a duly authorized issue of Securities of the Company, designated as
its 3.25% Convertible Senior Notes due 2015 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005, the Ninth Supplemental
Indenture, dated as of October 1, 2009 and the Tenth Supplemental Indenture, dated as of March 16,
2010 (as so supplemented, herein called the “Indenture”), between the Company and U.S. Bank
National Association (herein called the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders
of the Securities. Additional Securities may be issued in an unlimited aggregate principal amount,
subject to certain conditions specified in the Indenture. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
Prior to March 15, 2015, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Tenth
Supplemental Indenture. Any such redemption shall be upon at least 30 days’ and no more than 60
days’ notice to Holders of the Securities.
Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Redemption Price and the
principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Security
to a Paying Agent to collect such payments in respect of the Security. The Company will pay cash
amounts in money of the United States that at the time of payment is legal tender for payment of
public and private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall make any of the
changes set forth in Section 6.02 of the Tenth Supplemental Indenture, without the consent of each
Holder of an Outstanding Security affected thereby. It is also provided in the Indenture that,
prior to any declaration accelerating the maturity of the Securities, the Holders of a majority in
principal amount of the Securities at the time Outstanding may on behalf of the Holders of all of
the Securities waive any past default or Event of Default under the Indenture and its
D-Exh A-4
consequences except as provided in the Indenture. Any such consent or waiver by the Holder of
this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Security and any Securities which may be
issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.
The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred
to on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.
The Securities are not subject to redemption through the operation of any sinking fund.
Section 1004, Section 1006, Section 1007 and Section 1011 of the Indenture shall not apply to the
Securities.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, at
any time prior to the close of business on the Trading Day immediately preceding the Maturity Date,
to convert any Securities or portion thereof which is $1,000 or an integral multiple thereof, into
Common Shares at the Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture, upon surrender of this Security, together with a Notice of Conversion, a
form of which is attached to this Security, as provided in the Indenture and this Security, to the
Company at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, City of New York or elsewhere as provided in the Indenture, and, unless the shares
issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the
Holder or by his duly authorized attorney. The initial Conversion Rate is 57.8503 shares for each
$1,000 principal amount of Securities. No fractional Common Shares will be issued upon any
conversion, but an adjustment in cash will be paid to the Holder, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be
D-Exh A-5
issuable upon the surrender of any Security or Securities for conversion. No adjustment shall
be made for dividends or any shares issued upon conversion of such Security except as provided in
the Indenture.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York, a new Security or Securities of
authorized denominations for an equal aggregate principal amount will be issued to the transferee
in exchange thereof, subject to the limitations provided in the Indenture, without charge except
for any tax, assessments or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
Terms used in this Security and defined in the Indenture are used herein as therein defined.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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).
D-Exh A-6
PROLOGIS
3.25% Convertible Senior Notes due 2015
No. ____________
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Notation Explaining |
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Principal Amount |
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Authorized Signature of |
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Date |
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Principal Amount |
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Recorded |
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Trustee or Custodian |
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D-Exh A-7
FORM OF CONVERSION NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into Common Shares in accordance with the terms of the Indenture referred to in
this Security, and directs that the shares issuable and deliverable upon such conversion together
with any check in payment of the cash in respect of fractional shares and any Securities
representing any unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If shares or any portion of this
Security not converted are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be
paid to the undersigned on account of interest accompanies this Security.
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Dated: ___________________ |
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Signature(s) |
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Signature Guarantee |
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Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions)
with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities
to be delivered, other than to and in the name of
the registered holder. |
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D-Exh A-8
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Fill in for registration of shares if to be
issued, and Securities if to be delivered, other
than to and in the name of the registered holder: |
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(Name) |
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(Street Address) |
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(City, State and Zip Code) |
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Please print name and address |
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Principal amount to be converted (if less
than all): $____,000 |
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Social Security or Other Taxpayer Identification Number |
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D-Exh A-9
FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis, to be known as Prologis (the “Company”), as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral
multiple thereof) below designated, in accordance with the terms of the Indenture referred to in
this Security, to the registered holder hereof.
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Dated: ____________________ |
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Signature(s) |
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Social Security or Other Taxpayer
Identification Number Principal amount to
be repaid (if less than all): $____,000
NOTICE: |
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The above signatures of the holder(s) hereof
must correspond with the name as written
upon the face of the Security in every particular
without alteration or enlargement or any
change whatever. |
D-Exh A-10
FORM OF ASSIGNMENT AND TRANSFER
For value received ______________ hereby sell(s), assign(s) and transfer(s) unto _____________
(Please insert social security or Taxpayer Identification Number of assignee) the within Security,
and hereby irrevocably constitutes and appoints ____________ attorney to transfer the said Security
on the books of the Company, with full power of substitution in the premises.
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Dated: ___________________ |
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Signature(s) |
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Signature Guarantee
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Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions)
with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities
to be delivered, other than to and in the name of
the registered holder. |
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NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change or the assignment must correspond with the name as written upon the face of the Security in
every particular without alteration or enlargement or any change whatever.
D-Exh A-11