EXHIBIT 99.2
EXECUTION COPY
================================================================================
PINNACLE AIRLINES CORP.
3.25% SENIOR CONVERTIBLE NOTES DUE 2025
--------------------
INDENTURE
DATED AS OF FEBRUARY 8, 2005
--------------------
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE
================================================================================
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.......................................................1
Section 1.02 Other Definitions.................................................9
Section 1.03 Trust Indenture Act Provisions...................................10
Section 1.04 Rules Of Construction............................................10
ARTICLE 2
THE SECURITIES
Section 2.01 Form And Dating..................................................11
Section 2.02 Execution And Authentication.....................................13
Section 2.03 Registrar, Paying Agent and Conversion Agent.....................13
Section 2.04 Paying Agent To Hold Money In Trust..............................14
Section 2.05 Lists of Holders of Securities...................................14
Section 2.06 Transfer And Exchange............................................14
Section 2.07 Replacement Securities...........................................16
Section 2.08 Outstanding Securities...........................................16
Section 2.09 Treasury Securities..............................................17
Section 2.10 Temporary Securities.............................................17
Section 2.11 Cancellation.....................................................17
Section 2.12 Legend; Additional Transfer And Exchange Requirements............18
Section 2.13 CUSIP Numbers....................................................22
ARTICLE 3
REDEMPTION AND PURCHASE
Section 3.01 To Redeem; Notice To Trustee.....................................23
Section 3.02 Selection Of Securities To Be Redeemed...........................23
Section 3.03 Notice Of Redemption.............................................24
Section 3.04 Effect Of Notice Of Redemption...................................25
Section 3.05 Deposit Of Redemption Price......................................25
Section 3.06 Securities Redeemed In Part......................................25
Section 3.07 Conversion Arrangement On Call For Redemption....................26
Section 3.08 Repurchase Of Securities At Option Of The Holder Upon a
Change of Control................................................26
Section 3.09 Effect Of Change of Control Repurchase Notice....................30
i
Section 3.10 Deposit Of Change of Control Repurchase Price....................30
Section 3.11 Repayment To The Company.........................................31
Section 3.12 Purchase Of Securities At Option Of The Holder On Specified
Dates............................................................31
Section 3.13 Securities Purchased In Part.....................................34
Section 3.14 Compliance With Securities Laws Upon Purchase Of Securities......35
Section 3.15 Purchase Of Securities In Open Market............................35
ARTICLE 4
CONVERSION
Section 4.01 Conversion Privilege And Conversion Rate.........................36
Section 4.02 Conversion Procedure.............................................40
Section 4.03 Fractional Shares................................................41
Section 4.04 Taxes On Conversion..............................................42
Section 4.05 Company To Provide Stock.........................................42
Section 4.06 Adjustment Of Conversion Rate....................................43
Section 4.07 No Adjustment....................................................48
Section 4.08 [Reserved].......................................................49
Section 4.09 Notice Of Adjustment.............................................49
Section 4.10 Notice Of Certain Transactions...................................49
Section 4.11 Effect Of Reclassification, Consolidation, Merger Or Sale On
Conversion Privilege.............................................49
Section 4.12 Trustee's Disclaimer.............................................50
Section 4.13 Voluntary Increase...............................................51
Section 4.14 Payment of Cash in Lieu of Common Stock..........................51
ARTICLE 5
COVENANTS
Section 5.01 Payment Of Securities............................................53
Section 5.02 SEC and Other Reports............................................53
Section 5.03 Compliance Certificates..........................................54
Section 5.04 Further Instruments And Acts.....................................54
Section 5.05 Maintenance Of Corporate Existence...............................54
Section 5.06 Rule 144A Information Requirement................................54
Section 5.07 Stay, Extension And Usury Laws...................................55
Section 5.08 Payment Of Liquidated Damages....................................55
Section 5.09 Maintenance of Office or Agency..................................55
ARTICLE 6
CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE
Section 6.01 Company May Consolidate, Etc., Only On Certain Terms.............56
Section 6.02 Successor Substituted............................................57
ii
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01 Events Of Default................................................58
Section 7.02 Acceleration.....................................................59
Section 7.03 Other Remedies...................................................60
Section 7.04 Waiver Of Defaults And Events Of Default.........................60
Section 7.05 Control By Majority..............................................60
Section 7.06 Limitations On Suits.............................................61
Section 7.07 Rights Of Holders To Receive Payment And To Convert..............61
Section 7.08 Collection Suit By Trustee.......................................62
Section 7.09 Trustee May File Proofs Of Claim.................................62
Section 7.10 Priorities.......................................................62
Section 7.11 Undertaking For Costs............................................63
ARTICLE 8
TRUSTEE
Section 8.01 Obligations Of Trustee...........................................64
Section 8.02 Rights Of Trustee................................................65
Section 8.03 Individual Rights Of Trustee.....................................66
Section 8.04 Trustee's Disclaimer.............................................66
Section 8.05 Notice Of Default Or Events Of Default...........................66
Section 8.06 Reports By Trustee To Holders....................................66
Section 8.07 Compensation And Indemnity.......................................67
Section 8.08 Replacement Of Trustee...........................................68
Section 8.09 Successor Trustee By Merger, Etc.................................68
Section 8.10 Eligibility; Disqualification....................................69
Section 8.11 Preferential Collection Of Claims Against Company................69
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Satisfaction And Discharge Of Indenture..........................70
Section 9.02 Application Of Trust Money.......................................71
Section 9.03 Repayment To Company.............................................71
Section 9.04 Reinstatement....................................................71
ARTICLE 10
AMENDMENTS; SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent Of Holders......................................73
Section 10.02 With Consent Of Holders.........................................74
iii
Section 10.03 Compliance With Trust Indenture Act.............................75
Section 10.04 Revocation And Effect Of Consents...............................75
Section 10.05 Notation On Or Exchange Of Securities...........................75
Section 10.06 Trustee To Sign Amendments, Etc.................................75
Section 10.07 Effect Of Supplemental Indentures...............................76
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls....................................77
Section 11.02 Notices.........................................................77
Section 11.03 Communications By Holders With Other Holders....................78
Section 11.04 Certificate And Opinion As To Conditions Precedent..............78
Section 11.05 Record Date For Vote Or Consent Of Holders of Securities........79
Section 11.06 Rules By Trustee, Paying Agent, Registrar And Conversion
Agent...........................................................79
Section 11.07 Legal Holidays..................................................79
Section 11.08 Governing Law...................................................79
Section 11.09 No Adverse Interpretation Of Other Agreements...................79
Section 11.10 No Recourse Against Others......................................80
Section 11.11 No Security Interest Created....................................80
Section 11.12 Successors......................................................80
Section 11.13 Multiple Counterparts...........................................80
Section 11.14 Separability....................................................80
Section 11.15 Table Of Contents, Headings, Etc................................80
Exhibit A....................................................................A-1
iv
CROSS-REFERENCE TABLE*
TIA INDENTURE
SECTION SECTION
---------
Section 310......................................................... 11.01
310(a)(1)................................................... 8.10
(a)(2)...................................................... 8.10
(a)(3)...................................................... N.A.**
(a)(4)...................................................... N.A.
(a)(5)...................................................... 8.10
(b)......................................................... 8.10
(c)......................................................... N.A.
Section 311......................................................... 11.01
311(a)...................................................... 8.11
(b)......................................................... 8.11
(c)......................................................... N.A.
Section 312......................................................... 11.01
(a)......................................................... N.A.
(b)......................................................... 11.03
(c)......................................................... 11.03
Section 313......................................................... 11.01
313(a)...................................................... 8.06(a)
(b)(1)...................................................... N.A.
(b)(2)...................................................... 8.06(a)
(c)......................................................... 8.06(a)
(d)......................................................... N.A.
Section 314......................................................... 8.06; 12.01
314(a)...................................................... N.A.
(b)......................................................... 11.01(g)
(c)(1)...................................................... N.A.
(c)(2)...................................................... N.A.
(c)(3)...................................................... N.A.
(d)......................................................... 11.01(f)
(e)......................................................... N.A.
(f)......................................................... N.A.
Section 315......................................................... 11.01
315(a)...................................................... 8.01(b)
315(b)...................................................... 8.05
315(d)...................................................... 8.01(c)
315(d)(2)................................................... 8.01(c)
315(d)(3)................................................... 8.01(c)
315(e)...................................................... 7.11
Section 316......................................................... 11.01
Section 317......................................................... 11.01
Section 318(c)...................................................... 11.01
-----------
* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
** N.A. means Not Applicable.
THIS INDENTURE dated as of February 8, 2005 is between Pinnacle Airlines
Corp., a corporation duly organized under the laws of the State of Delaware (the
"Company"), and Deutsche Bank Trust Company, a national banking association
organized and existing under the laws of the United States, as Trustee (the
"Trustee").
In consideration of the purchase of the Securities (as defined herein) by
the Holders thereof, both parties agree as follows for the benefit of the other
and for the equal and ratable benefit of the Holders of the Company's 3.25%
Senior Convertible Notes Due 2025.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial ownership interests in a Global Security, the rules and procedures of
the Depositary, to the extent applicable to such transfer or exchange.
"Beneficial Ownership" means the definition such term is given in
accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act.
"Board of Directors" means either the board of directors of the Company or
any committee of the Board of Directors authorized to act for it with respect to
this Indenture.
"Business Day" means any weekday that is not a day on which banking
institutions in the City of New York are authorized or obligated by law or
executive order to close or be closed.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, but excluding any debt
securities convertible into such equity.
"Cash" or "cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
"Certificated Security" means a Security that is in substantially the form
attached as Exhibit A but that does not include the information or the schedule
called for by footnote 1 and 2 thereof.
1
"Change of Control" means (i) the acquisition by any Person of Beneficial
Ownership, directly or indirectly, through a purchase, merger (except as set
forth in clause (ii) below) or other acquisition transaction or series of
transactions, of shares of the Company's Capital Stock entitling that person to
exercise 50% or more of the total voting power of all shares of the Company's
Capital Stock entitled to vote generally in elections of directors, other than
any acquisition by the Company, any of its subsidiaries or any of its employee
benefit plans; or (ii) the consolidation or merger of the Company with or into
any other Person, any merger of another Person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or substantially
all of the Company's and its Subsidiaries' properties and assets, taken as a
whole, to another person, provided that this clause (ii) shall not apply to (A)
any transaction (x) that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of the Company's Capital Stock
and (z) pursuant to which holders of the Company's Capital Stock immediately
prior to the transaction are entitled to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of the Capital Stock entitled to
vote generally in elections of directors of the continuing or surviving Person
immediately after the transaction; or (B) any merger, share exchange, transfer
of assets or similar transaction solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of common stock of the surviving entity. Notwithstanding anything to the
contrary set forth herein, a Change of Control will be deemed not to have
occurred if at least 90% of the consideration (excluding cash payments for
fractional shares and cash payments made in respect of dissenters' appraisal
rights) in a transaction or transactions otherwise constituting a Change in
Control consists of shares of common stock traded on a U.S. national securities
exchange or quoted on the Nasdaq National Market, or which will be so traded or
quoted when issued or exchanged in connection with the transaction or
transactions, and as a result of the transaction or transactions the Securities
become convertible into such common stock.
"Change of Control Effective Date" means the date on which any Change of
Control becomes effective.
"Change of Control Repurchase Price" of any Security, means 100% of the
principal amount of the Security to be purchased plus accrued and unpaid
interest, if any, and Liquidated Damages, if any, to, but excluding, the Change
of Control Repurchase Date.
"Closing Price" means on any Trading Day, the reported last sale price per
share (or if no last sale price is reported, the average of the bid and ask
prices per share or, if more than one in either case, the average of the average
bid and the average ask prices per share) on such date reported by the Nasdaq
National Market or, if the Company's Common Stock (or the applicable security)
is not quoted on the Nasdaq National Market, as reported by the principal
national securities exchange on which the Company's Common Stock (or such other
security) is listed, or if no such prices are available, the Closing Price per
share shall be the fair value of a share of Common Stock (or such other
security) as reasonably determined by the Board of Directors (which
determination shall be conclusive and shall be evidenced by an Officers'
Certificate delivered to the Trustee).
"Common Stock" means the common stock of the Company, par value $0.01, as
it exists on the date of this Indenture and any shares of any class or classes
2
of Capital Stock of the Company resulting from any reclassification or
reclassifications thereof, or, in the event of a merger, consolidation or other
similar transaction involving the Company that is otherwise permitted hereunder
in which the Company is not the surviving corporation the common stock, common
equity interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its direct
or indirect parent corporation, and which 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 the Company and which are not subject
to redemption by the Company; provided, however, that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable on conversion of Securities 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 the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor Company.
"Conversion Price" per share of Common Stock as of any day means the result
obtained by dividing (i) $1,000 by (ii) the then applicable Conversion Rate.
"Conversion Rate" means the rate at which shares of Common Stock shall be
delivered upon conversion, which rate shall be initially 75.6475 shares of
Common Stock for each $1,000 principal amount of Securities, as adjusted from
time to time pursuant to the provisions of this Indenture.
"Conversion Reference Period" means:
(i) for Securities that are converted after the Company has specified a
Redemption Date, the ten consecutive Trading Days beginning on the third Trading
Day following such Redemption Date (in the case of securities being converted
which were previously called for redemption (including a partial redemption)
this clause (i) shall only apply to those Securities that are subject to
redemption); and
(ii) in all other instances, the ten consecutive Trading Days beginning on
the third Trading Day following the Conversion Date.
"Conversion Value" means, for each $1,000 principal amount of Securities,
an amount equal to the product of (i) the Conversion Rate in effect on the
Conversion Date and (ii) the average of the Closing Price of the Company's
Common Stock for each of the ten consecutive Trading Days of the Conversion
Reference Period; provided that after the consummation of a Change of Control in
which the consideration is comprised entirely of cash, the amount in clause (ii)
of this definition shall be the cash price per share received by holders of the
Company's Common Stock in such Change of Control.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered, which
office at the date of the execution of this Indenture is located at 6810
0
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxxx 00000; Attention: Trust
and Securities Services, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company.
"Daily Share Amount" means, for each Trading Day of the Conversion
Reference Period and for each $1,000 principal amount of notes surrendered for
conversion, a number of shares (but in no event less than zero) equal to (i) the
amount of (a) the Closing Price on such Trading Day multiplied by the Conversion
Rate in effect on the Conversion Date, appropriately adjusted to take into
account the occurrence on such Trading Day of any event which would require an
anti-dilution adjustment, less (b) $1,000; divided by (ii) the Closing Price on
such Trading Day multiplied by 10.
"Default" means, when used with respect to the Securities, any event that
is or, after notice or passage of time, or both, would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"Final Maturity Date" means February 15, 2025.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, including those set forth in (1) the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (2) the statements and pronouncements
of the Financial Accounting Standards Board, (3) such other statements by such
other entity as approved by a significant segment of the accounting profession
and (4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in registration
statements filed under the Securities Act and periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from
the accounting staff of the SEC.
"Global Security" means a Security in global form that is in substantially
the form attached as Exhibit A and that includes the information and schedule
called for in footnote 1 thereof and which is deposited with the Depositary or
its custodian and registered in the name of the Depositary or its nominee.
"Holder" or "Holder of a Security" means the person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without duplication:
(i) all obligations and other liabilities, contingent or otherwise, of
such person for borrowed money (including overdrafts), including all
such obligations and other liabilities accruing or incurred after the
commencement of any bankruptcy or insolvency proceeding at the rate or
on the amount specified in the applicable Indebtedness, in each case,
whether or not a claim therefore is allowed, allowable or enforceable
in such bankruptcy or insolvency proceeding, or for the deferred
purchase price of property or services, excluding any trade payables
and other accrued current liabilities incurred in the ordinary course
4
of business, but including all obligations, contingent or otherwise,
of such person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance
facilities or other similar facilities;
(ii) all obligations of such person evidenced by credit or loan agreements,
notes, bonds, debentures or other similar instruments;
(iii)all obligations and other liabilities, contingent or otherwise, of
such person under any conditional sale or other title retention
agreement with respect to property acquired by such person (even if
the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property) but excluding trade payables arising in the ordinary course
of business;
(iv) all obligations and liabilities, contingent or otherwise, in respect
of leases of such person required, in conformity with GAAP, to be
accounted for as capitalized lease obligations on the consolidated
balance sheet of such person;
(v) all obligations of such person under or in respect of interest rate
agreements, currency agreements or other swap, cap, floor or collar
agreements, hedge agreements, forward contracts or similar instruments
or agreements or foreign currency hedge, exchange or purchase or
similar instruments or agreements;
(vi) the present value of the obligations of such person as lessee for net
rental payments (excluding all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water,
utilities and similar charges to the extent included in such rental
payments) during the remaining term of the lease included in any sale
and leaseback transaction, including any period for which such lease
has been extended or may, at the option of the lessor, be extended
(this present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in
accordance with GAAP);
(vii)all indebtedness referred to in (but not excluded from) the preceding
clauses of this definition of other persons, the payment of which is
secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any lien on
or with respect to property owned by such person, including, without
limitation, accounts and contract rights, even though such person has
not assumed or become liable for the payment of such indebtedness (the
amount of such obligation being deemed to be the lesser of the value
of such property or asset or the amount of the obligation so secured),
and all obligations of such person with respect to receivable
securitization facilities;
(viii)all direct or indirect guarantees or similar arrangements by such
person of indebtedness referred to in this definition of any other
person; and
5
(ix) any and all refinancings, replacements, deferrals, renewals,
extensions and refundings of or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind
described in the clauses above.
"Indenture" means this Indenture as amended or supplemented from time to
time pursuant to the terms of this Indenture, including the provisions of the
TIA that are automatically deemed to be a part of this Indenture by operation of
the TIA.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Xxxxx & Associates, Inc.
"Interest Payment Date" means February 15 and August 15 of each year,
commencing August 15, 2005.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Liquidated Damages" has the meaning specified in the Registration Rights
Agreement. All references herein to interest accrued or payable as of any date
shall include any Liquidated Damages accrued or payable as of such date as
provided in the Registration Rights Agreement.
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Secretary, any
Assistant Controller or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers; provided, however, that for purposes of Sections 4.11 and 5.03,
"Officers' Certificate" means a certificate signed by (a) the principal
executive officer, principal financial officer or principal accounting officer
of the Company and (b) one other Officer.
"Opinion of Counsel" means a written opinion from legal counsel reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any syndicate or group that would be deemed to be a
"person" under Section 13(d)(3) of the Exchange Act or any other entity.
"Principal" or "principal" of a debt security, including the Securities,
means the principal of the security plus, when appropriate, the premium, if any,
on the security.
"Public Acquirer Change of Control" means any event constituting a Change
of Control that would otherwise give Holders of Securities the right to cause
the Company to repurchase the Securities in accordance with Section 3.08, where
either (a) the acquirer or (b) if not the acquirer, a direct or indirect
majority-owned Subsidiary of the acquirer or (c) if not the acquirer or any
direct or indirect majority-owned Subsidiary of the acquirer, a corporation by
6
which the acquirer is directly or indirectly majority-owned, has a class of
common stock traded on a U.S. national securities exchange or quoted on the
Nasdaq National Market or which will be so traded or quoted when issued or
exchanged in connection with such Change of Control, and the acquirer has
designated such common stock to serve as the public acquirer common stock in the
transaction. "Majority-owned" for the purposes of this definition means having
Beneficial Ownership of more than 50% of the total voting power of the
respective Person's Voting Stock.
"Public Acquirer Common Stock" means the class of common stock of an entity
referred to in section (a), (b), or (c) of the first sentence of the definition
of Public Acquirer Change of Control that has been designated to serve as the
public acquirer common stock in the transaction.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed by the Company for such redemption pursuant to Section
3.01.
"Redemption Price" when used with respect to any Security to be redeemed,
means 100% of the principal amount thereof, plus accrued and unpaid interest, if
any, and Liquidated Damages, if any, to but excluding the Redemption Date.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of February 8, 2005, among the Company and the Initial Purchasers, as
amended from time to time in accordance with its terms.
"Regular Record Date" means, with respect to each Interest Payment Date,
the February 1 or August 1, as the case may be, next preceding such Interest
Payment Date.
"Restricted Global Security" means a Global Security that is a Restricted
Security.
"Restricted Security" means a Security required to bear the restricted
legend set forth in the form of Security annexed as Exhibit A.
"Rule 144" means Rule 144 under the Securities Act or any successor to such
Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor to
such Rule.
"SEC" means the Securities and Exchange Commission.
"Securities" means the up to $121.0 million aggregate principal amount of
3.25% Senior Convertible Notes due 2025, or any of them (each a "Security"), as
amended or supplemented from time to time, that are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Securities Custodian" means the Trustee, as custodian with respect to the
Securities in global form, or any successor thereto.
"Stock Price" means the price paid per share of the Company's Common Stock
in connection with a Change of Control as determined pursuant to Section
4.01(j).
7
"Significant Subsidiary" means, in respect of any Person, as of any date of
determination, a Subsidiary of such Person that would constitute a "significant
subsidiary" as such term is defined under Rule 1-02(w) of Regulation S-X under
the Securities Act.
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency within the control of such Person to satisfy) to vote in the
election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person; (ii) such
Person and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture, except to the
extent that the Trust Indenture Act or any amendment thereto expressly provides
for application of the Trust Indenture Act as in effect on another date.
"Trading Day" means any day on which the Nasdaq National Market or, if the
Company's Common Stock is not quoted on the Nasdaq National Market, the
principal national securities exchange on which the Company's Common Stock is
listed, is open for trading or, if the applicable Security is not so listed,
admitted for trading or quoted, any Business Day. A Trading Day only includes
those days that have a scheduled closing time of 4:00 p.m. (New York City time)
or the then standard closing time for regular trading on the relevant exchange
or trading system.
"Trading Price" of the Securities on any date of determination means the
average of the secondary market bid quotations obtained by the Trustee for $5
million principal amount of Securities at approximately 3:30 p.m., New York City
time, on such determination date from three nationally recognized securities
dealers the Company selects; provided that if three such bids cannot reasonably
be obtained by the Trustee, but two such bids are obtained, then the average of
the two bids shall be used, and if only one such bid can reasonably be obtained
by the Trustee, that one bid shall be used. If the Trustee cannot reasonably
obtain at least one bid for $5 million principal amount of Securities from a
nationally recognized securities dealer, then the Trading Price per $1,000
principal amount of Securities will be deemed to be less than 98% of the product
of the Closing Price of our Common Stock and the Conversion Rate per $1,000
principal amount of Securities.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture, and thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer assigned to
the Corporate Trust Office, and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
8
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency within
the control of such person to satisfy) to vote in the election of directors,
managers or trustees thereof.
Section 1.02 Other Definitions.
Term Defined in Section
-------------------------------------------------------- ------------------
"Agent Members"......................................... 2.01
"Bankruptcy Law"........................................ 7.01
"Change of Control Company Notice"...................... 3.08
"Change of Control Repurchase Date"..................... 3.08
"Change of Control Repurchase Notice"................... 3.08
"Company Order"......................................... 2.02
"Company Put Right Notice".............................. 3.12
"Conversion Agent"...................................... 2.03
"Conversion Date"....................................... 4.02
"Current Market Price".................................. 4.06
"DTC"................................................... 2.01
"Depositary"............................................ 2.01
"Determination Date".................................... 4.06
"Distributed Securities"................................ 4.06
"Distribution Notice"................................... 4.01
"Election Notice"....................................... 4.01
"Event of Default"...................................... 7.01
"Expiration Date"....................................... 4.06
"Expiration Time"....................................... 4.06
"Legal Holiday"......................................... 12.07
"Legend"................................................ 2.12
"Make Whole Premium".................................... 4.01
"Merger Notice"......................................... 4.01
"Notice of Default"..................................... 7.01
"Paying Agent".......................................... 2.03
"Primary Registrar"..................................... 2.03
"Public Acquisition Notice"............................. 3.08
"Purchase Agreement".................................... 2.01
"Purchased Shares"...................................... 4.06
"purchases"............................................. 4.06
"Put Right Purchase Date"............................... 3.12
"Put Right Purchase Notice"............................. 3.12
"Put Right Purchase Price".............................. 3.12
"record date"........................................... 4.06
"QIB"................................................... 2.01
9
"Receiver".............................................. 7.01
"Registrar"............................................. 2.03
"Rights"................................................ 4.06
"Rights Plan"........................................... 4.06
"Spinoff Securities".................................... 4.06
"Spinoff Valuation Period".............................. 4.06
"tender offer".......................................... 4.06
"tendered shares"....................................... 4.06
"Trigger Event"......................................... 4.06
"Triggering Distribution"............................... 4.06
Section 1.03 ....Trust Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, that provision is
incorporated by reference in and made a part of this Indenture. This Indenture
shall also include those provisions of the TIA required to be included herein by
the provisions of the Trust Indenture Reform Act of 1990. The following TIA
terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other obligor on
the Securities.
All other terms used in this Indenture that are defined in the TIA, defined
by TIA reference to another statute or defined by any SEC rule and not otherwise
defined herein have the meanings assigned to them therein.
Section 1.04 Rules Of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions;
10
(5) the term "merger" includes a statutory share exchange and the term
"merged" has a correlative meaning;
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include subsequent
amendments thereto; and
(8) all "Article", "Exhibit" and "Section" references are to Articles,
Exhibits and Sections, respectively, of or to this Indenture unless
otherwise specified herein, and the terms "herein," "hereof" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
ARTICLE 2
THE SECURITIES
Section 2.01 Form And Dating.
The Securities and the Trustee's certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange or automated
quotation system rule or regulation or usage. The Company shall provide any such
notations, legends or endorsements to the Trustee in writing. Each Security
shall be dated the date of its authentication. The Securities are being offered
and sold by the Company pursuant to a Purchase Agreement dated February 3, 2005
(the "Purchase Agreement") among the Company and the Initial Purchasers, in
transactions exempt from, or not subject to, the registration requirements of
the Securities Act.
(a) Restricted Global Securities. All of the Securities are initially being
offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form of one or
more Restricted Global Securities, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the depositary, The Depository Trust
Company ("DTC", and such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its nominee,
Cede & Co. (or any successor thereto), for the accounts of participants in the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Securities Custodian as hereinafter provided, subject in
each case to compliance with the Applicable Procedures.
(b) Global Securities In General. Each Global Security shall represent such
of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect replacements, exchanges, purchases, redemptions, or
11
conversions of such Securities. Any adjustment of the aggregate principal amount
of a Global Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.12 and shall be made on the records of the Trustee and the
Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or under the Global Security, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (1) prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (2)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Book Entry Provisions. The Company shall execute and the Trustee shall,
in accordance with this Section 2.01(c), authenticate and deliver initially one
or more Global Securities that (1) shall be registered in the name of the
Depositary or its nominee, (2) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instructions and (3) shall bear
legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
12
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
Section 2.02 Execution And Authentication.
(a) The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $121,000,000, except as
provided in Sections 2.06 and 2.07.
(b) An Officer shall sign the Securities for the Company by manual or
facsimile signature. Typographic and other minor errors or defects in any such
facsimile signature shall not affect the validity or enforceability of any
Security that has been authenticated and delivered by the Trustee.
(c) If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
(d) A Security shall not be valid until an authorized signatory of the
Trustee by manual or facsimile signature signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
(e) The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to
$121,000,000 upon receipt of a written order or orders of the Company signed by
an Officer of the Company (a "Company Order"). The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such
Securities will be represented by a Restricted Global Security and the date on
which each original issue of Securities is to be authenticated.
(f) The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
(g) The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
Section 2.03 Registrar, Paying Agent and Conversion Agent.
(a) The Company shall maintain one or more offices or agencies where
Securities may be presented for registration of transfer or for exchange (each,
a "Registrar"), one or more offices or agencies where Securities may be
presented for payment (each, a "Paying Agent"), one or more offices or agencies
where Securities may be presented for conversion (each, a "Conversion Agent")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Xxxxxxxxx
00
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, The City of New York. One of the Registrars (the "Primary Registrar")
shall keep a register of the Securities and of their transfer and exchange.
(b) The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, provided that the Agent may be an Affiliate
of the Trustee. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar, Paying Agent, Conversion Agent, or agent for service of
notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any
Affiliate of the Company may act as Paying Agent (except for the purposes of
Section 5.01 and Article 9).
(c) The Company hereby initially designates the Trustee as Paying Agent,
Registrar, Securities Custodian and Conversion Agent, and designates the
Corporate Trust Office of the Trustee and the office or agency of Deutsche Bank
Trust Company America, an Affiliate of the Trustee, in the Borough of Manhattan,
The City of New York, which office at the date of the execution of this
Indenture is located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 as the Corporate
Trust Office.
Section 2.04 Paying Agent To Hold Money In Trust.
Prior to 10:00 a.m., New York City time, on each due date of the payment of
principal of, or interest on, any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest so becoming due. Subject to Section
9.02, a Paying Agent shall hold in trust for the benefit of Holders of
Securities or the Trustee all money held by the Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee of
any failure by the Company (or any other obligor on the Securities) to make any
such payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall, before 10:00 a.m., New York City time, on each due date of the
principal of, or interest on, any Securities, segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee, and the Trustee may at any time during the
continuance of any Default, upon written request to a Paying Agent, require such
Paying Agent to pay forthwith to the Trustee all sums so held in trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the Company) shall
have no further liability for the money.
Section 2.05 Lists of Holders of Securities.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Securities. If the Trustee is not the Primary Registrar, the Company
shall furnish to the Trustee on or before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Holders of Securities.
Section 2.06 Transfer And Exchange.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Security is presented to a Registrar with a
14
request to register a transfer thereof or to exchange such Security for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested; provided,
however, that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by an assignment form
and, if applicable, a transfer certificate each in the form included in Exhibit
A, and completed in a manner satisfactory to the Registrar and duly executed by
the Holder thereof or its attorney duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.03, the Company shall execute and the Trustee shall authenticate
Securities of a like aggregate principal amount at the Registrar's request. Any
exchange or transfer shall be without charge, except that the Company or the
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto; provided that this
sentence shall not apply to any exchange pursuant to Section 2.10, 2.12(a),
3.06, 3.13, 4.02(e) or 10.05.
(b) Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (1) any Securities for a period of 15 days
next preceding mailing of a notice of Securities to be redeemed, (2) any
Securities or portions thereof selected or called for redemption (except, in the
case of redemption of a Security in part, the portion thereof not to be
redeemed), (3) any Securities or portions thereof in respect of which a Change
of Control Repurchase Notice has been delivered and not withdrawn by the Holder
thereof (except, in the case of the purchase of a Security in part, the portion
thereof not to be purchased) or (4) any Securities or portions thereof in
respect of which a Put Right Purchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a
Security in part, the portion thereof not to be purchased).
(c) All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange. (d) Any Registrar appointed pursuant to Section 2.03 shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
(f) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or other
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
15
Section 2.07 Replacement Securities.
(a) If any mutilated Security is surrendered to the Company, a Registrar or
the Trustee, and the Company, a Registrar and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and there
is delivered to the Company, the applicable Registrar and the Trustee such
security or indemnity as will be required by them to save each of them harmless,
then, in the absence of notice to the Company, such Registrar or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
(b) If any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, or is about to be purchased or redeemed by
the Company pursuant to Article 3, or converted pursuant to Article 4, the
Company in its discretion may, instead of issuing a new Security, pay, redeem,
purchase or convert such Security, as the case may be.
(c) Upon the issuance of any new Securities under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the Trustee
or the Registrar) in connection therewith.
(d) Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
(e) The provisions of this Section 2.07 are (to the extent lawful)
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.08 Outstanding Securities.
(a) Securities outstanding at any time are all Securities authenticated by
the Trustee, except for those canceled by it, those redeemed or purchased
pursuant to Article 3, those converted pursuant to Article 4, those delivered to
the Trustee for cancellation or surrendered for transfer or exchange and those
described in this Section 2.08 as not outstanding.
(b) If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If a Paying Agent (other than the Company or an Affiliate of the
Company) holds in respect of the outstanding Securities on a Redemption Date, a
Change of Control Repurchase Date, a Put Right Purchase Date, or the Final
Maturity Date money sufficient to pay the principal of (including premium, if
any) and accrued interest on Securities (or portions thereof) payable on that
date, then on and after such Redemption Date, Change of Control Repurchase Date,
16
Put Right Purchase Date, or Final Maturity Date, as the case may be, such
Securities (or portions thereof, as the case may be) shall cease to be
outstanding and cash interest and Original Issue Discount on them shall cease to
accrue; provided that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision thereof
satisfactory to the Trustee has been made.
(d) Subject to the restrictions contained in Section 2.09, a Security does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
Section 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by any
Affiliate of the Company or of such other obligor shall be disregarded, except
that, for purposes of determining whether the Trustee shall be protected in
relying on any such notice, direction, waiver or consent, only Securities which
a Trust Officer of the Trustee with responsibility for this Indenture actually
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Securities and that the pledgee is not the Company or any other obligor on the
Securities or any Affiliate of the Company or of such other obligor.
Section 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare
and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Securities in exchange for
temporary Securities.
Section 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, redemption, purchase, payment or conversion. The Trustee and
no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, purchase, payment,
conversion or cancellation and shall dispose of the cancelled Securities in
accordance with its customary procedures or deliver the canceled Securities to
the Company. All Securities which are redeemed, purchased or otherwise acquired
by the Company or any of its Subsidiaries prior to the Final Maturity Date
pursuant to Article 3 shall be delivered to the Trustee for cancellation, and
the Company may not hold or resell such Securities or issue any new Securities
to replace any such Securities or any Securities that any Holder has converted
pursuant to Article 4.
17
Section 2.12 Legend; Additional Transfer And Exchange Requirements.
(a) If Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends set forth
on the forms of Securities attached as Exhibit A (collectively, the "Legend"),
or if a request is made to remove the Legend on a Security, the Securities so
issued shall bear the Legend, or the Legend shall not be removed, as the case
may be, unless there is delivered to the Company and the Registrar such
satisfactory evidence, which shall include an Opinion of Counsel if requested by
the Company or such Registrar, as may be reasonably required by the Company and
the Registrar, that neither the Legend nor the restrictions on transfer set
forth therein are required to ensure that transfers thereof comply with the
provisions of Rule 144A or Rule 144 under the Securities Act or that such
Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act; provided that no such evidence need be supplied in connection
with the sale of such Security pursuant to a registration statement that is
effective at the time of such sale. Upon (1) provision of such satisfactory
evidence if requested, or (2) notification by the Company to the Trustee and
Registrar of the sale of such Security pursuant to a registration statement that
is effective at the time of such sale, the Trustee, at the written direction of
the Company, shall authenticate and deliver a Security that does not bear the
Legend. If the Legend is removed from the face of a Security and the Security is
subsequently held by an Affiliate of the Company, the Legend shall be
reinstated.
(b) A Global Security may not be transferred, in whole or in part, to any
Person other than the Depositary or a nominee or any successor thereof, and no
such transfer to any such other Person may be registered; provided that the
foregoing shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No transfer
of a Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name of
such Person. Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with this Section 2.12.
(c) Subject to Section 2.12(b), every Security shall be subject to the
restrictions on transfer provided in the Legend other than a Restricted Global
Security. Whenever any Restricted Security other than a Restricted Global
Security is presented or surrendered for registration of transfer or in exchange
for a Security registered in a name other than that of the Holder, such Security
must be accompanied by a certificate in substantially the form set forth in
Exhibit A, dated the date of such surrender and signed by the Holder of such
Security, as to compliance with such restrictions on transfer. The Registrar
shall not be required to accept for such registration of transfer or exchange
any Security not so accompanied by a properly completed certificate.
(d) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
18
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the
Registrar, an Opinion of Counsel reasonably acceptable to the Company and the
Registrar and addressed to the Company and the Registrar, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the offer and sale of the Securities under the Securities
Act. The Trustee shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance with the aforementioned Opinion of Counsel or
registration statement.
As used in Sections 2.12(c) and (d), the term "transfer" encompasses any sale,
pledge, transfer, hypothecation or other disposition of any Security.
(e) The provisions below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or a nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for purposes of
this Indenture.
(2) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered, and no transfer of a Global Security in whole or
in part shall be registered in the name of any Person other than the
Depositary or one or more nominees thereof; provided that a Global Security
may be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (A) the Depositary has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days after receiving
such notice or becoming aware that the Depositary has ceased to be a
"clearing agency", or (B) an Event of Default has occurred and is
continuing with respect to the Securities. Any Global Security exchanged
pursuant to subclause (A) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to subclause (B) above may
be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided further that any such
Security so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Security.
(3) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends provided
for herein. Any Global Security to be exchanged in whole shall be
19
surrendered by the Depositary to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount equal
to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(4) Subject to clause (6) of this Section 2.12(e), the registered
Holder may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture or
the Securities.
(5) In the event of the occurrence of any of the events specified in
clause (1) of this Section 2.12(e), the Company will promptly make
available to the Trustee a reasonable supply of Certificated Securities in
definitive, fully registered form, without interest coupons.
(6) Neither Agent Members nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to
any Global Security registered in the name of the Depositary or any nominee
thereof, or under any such Global Security, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner and holder of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other Person on whose behalf an Agent Member may act,
the operation of customary practices of such Persons governing the exercise
of the rights of a holder of any Security.
(7) At such time as all interests in a Global Security have been
redeemed, converted, cancelled or exchanged for Securities in certificated
form, such Global Security shall, upon receipt thereof, be cancelled by the
Trustee in accordance with standing procedures and instructions existing
between the Depositary and the Securities Custodian, subject to Section
2.11 of this Indenture. At any time prior to such cancellation, if any
interest in a Global Security is redeemed, converted, canceled or exchanged
for Securities in certificated form, the principal amount of such Global
Security shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Securities Custodian, be
appropriately reduced, and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of
the Trustee, to reflect such reduction.
(f) Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision thereto),
any stock certificate representing Common Stock issued upon conversion of any
Security shall bear a legend in substantially the following form, unless such
20
Common Stock has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be effective
at the time of such transfer) or transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto), or such Common Stock
has been issued upon conversion of Securities that have been transferred
pursuant to a registration statement that has been declared effective under the
Securities Act or pursuant to Rule 144 under the Securities Act (or any
successor provision thereto), or unless otherwise agreed by the Company in
writing with written notice thereof to the transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT, UNTIL THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE COMMON STOCK
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY EXCEPT (A) TO PINNACLE AIRLINES CORP. OR ANY PARENT OR
SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(D) ABOVE), IT WILL FURNISH TO EQUISERVE TRUST COMPANY,
N.A., AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SUCH TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO
WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE
1(D) ABOVE OR UPON ANY TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
Any such Common Stock as to which such restrictions on transfer shall have
expired in accordance with their terms or as to which the conditions for removal
of the foregoing legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of Common Stock for
21
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section.
Section 2.13 CUSIP Numbers.
The Company in issuing the Securities may use one or more "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption or purchase as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption or purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
purchase shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the "CUSIP" numbers.
22
ARTICLE 3
REDEMPTION AND PURCHASE
Section 3.01 To Redeem; Notice To Trustee.
(a) Prior to February 15, 2010, the Securities shall not be redeemable. On
or after February 15, 2010, the Company may, at its option, redeem the
Securities for cash at the Redemption Price, as a whole at any time or from time
to time in part, on any Redemption Date (or in the case of multiple redemptions,
Redemption Dates) fixed by the Company. If a Redemption Date falls after a
Regular Record Date and on or before the related Interest Payment Date, then
interest on the Securities payable on such Interest Payment Date will be payable
to the Holders in whose names the Securities are registered at the close of
business on such Regular Record Date.
(b) If the Company elects to redeem Securities pursuant to this Section
3.01, it shall notify the Trustee, on a date at least 30 days and no more than
60 days prior to the applicable Redemption Date (unless a shorter notice shall
be satisfactory to the Trustee), of the Redemption Date and the principal amount
of Securities to be redeemed. The record date relating to a redemption shall be
selected by the Company and given to the Trustee and shall not be less than five
days after the date of notice to the Trustee.
Section 3.02 Selection Of Securities To Be Redeemed.
(a) If less than all of the Securities are to be redeemed, unless the
Applicable Procedures specify otherwise, the Trustee shall select the Securities
to be redeemed within five Business Days after it receives the notice described
in Section 3.01(b). The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption by lot, or in its
discretion, on a pro rata basis or by another method that the Trustee considers
fair and appropriate (so long as such method is not prohibited by the rules of
any stock exchange or market on which the Securities are listed). Securities in
denominations of $1,000 principal amount may only be redeemed in whole. The
Trustee may select for redemption portions (equal to $1,000 principal amount or
any integral multiple thereof) of the principal amount of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
(b) If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (up
to the amount of the redemption) to be the portion selected for redemption.
Securities which have been converted subsequent to the Trustee commencing
selection of Securities to be redeemed but prior to redemption of such
Securities shall be treated by the Trustee as outstanding for the purpose of
such selection.
(c) In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before any selection of
23
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of Securities to be redeemed, or (ii) register the transfer or
exchange of any Security so selected for redemption, in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
Section 3.03 Notice Of Redemption.
(a) At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption to each
Holder of Securities to be redeemed at such Holder's address as it appears on
the Registrar's books.
(b) The notice shall identify the Securities (including CUSIP numbers) to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then effective Conversion Rate;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) that Securities called for redemption must be presented and
surrendered to a Paying Agent to collect the Redemption Price;
(6) that Holders who wish to convert Securities must surrender such
Securities for conversion no later than the close of business on the
Business Day immediately preceding the Redemption Date and must satisfy the
other requirements set forth in paragraph 9 of the Securities and Article
4;
(7) that, unless the Company has failed to make the payment of such
Redemption Price which is due and payable, interest and Liquidated Damages,
if any, will cease to accrue on and after the Redemption Date;
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon presentation and surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued; and
(9) if Certificated Securities have been issued and fewer than all the
outstanding Securities are to be redeemed, the certificate number and the
principal amounts of the particular Securities to be redeemed.
(c) If any of the Securities to be redeemed is in the form of a Global
Security, then 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 written request, which request shall (1) be irrevocable once given and
(2) set forth all relevant information required by clauses (1) through (9) of
24
Section 3.03(b), the Trustee shall give the notice of redemption to each Holder
in the Company's name and at the Company's expense; provided, however, that in
all cases, the text of such notice of redemption shall be prepared by the
Company; and provided further that the Company must make such request at least
five Business Days prior to the date by which such notice of redemption must be
given to the Holders in accordance with this Section 3.03.
Section 3.04 Effect Of Notice Of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price stated
in the notice, except for Securities that are converted on a Conversion Date
prior to the Redemption Date in accordance with the provisions of Article 4. On
or after the Redemption Date and upon presentation and surrender to a Paying
Agent, Securities called for redemption shall be paid at the Redemption Price.
Section 3.05 Deposit Of Redemption Price.
(a) Prior to 10:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) an amount of money (in immediately
available funds if deposited on such Redemption Date) sufficient to pay the
Redemption Price payable upon redemption on all Securities to be redeemed on
that date, other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall as promptly as
practicable return to the Company any money not required for that purpose
because of the cancellation of Securities or the conversion of Securities
pursuant to Article 4 or, if such money is then held by the Company in trust and
is not required for such purpose, it shall be discharged from the trust.
(b) If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Redemption Price of any Security for which a notice of
redemption has been tendered and not withdrawn in accordance with this Indenture
then, on the Redemption Date, such Security will cease to be outstanding,
whether or not the Security is delivered to the Paying Agent, and the rights of
the Holder in respect thereof shall terminate (other than the right to receive
the Redemption Price as aforesaid).
(c) No Securities may be redeemed by the Company at the option of Holders
if there has occurred and is continuing an Event of Default with respect to the
Securities, other than a Default in the payment of the Redemption Price. The
Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of an Event of Default (other than
a failure to pay the applicable Redemption Price).
Section 3.06 Securities Redeemed In Part.
Upon presentation and surrender of a Security that is redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
25
Section 3.07 Conversion Arrangement On Call For Redemption.
In connection with any redemption of Securities, the Company may arrange
for the purchase and conversion into Common Stock of any Securities called for
redemption by an agreement with one or more investment banks or other purchasers
to purchase such Securities by paying to a Paying Agent (other than the Company
or any of its Affiliates) in trust for the Holders, on or before 10:00 a.m., New
York City time, on the Redemption Date, an amount that, together with any
amounts deposited with such Paying Agent by the Company for the redemption of
such Securities, is not less than the Redemption Price. Notwithstanding anything
to the contrary contained in this Article 3, the obligation of the Company to
pay the Redemption Price of such Securities shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers; provided,
however, that nothing in this Section 3.07 shall relieve the Company of its
obligation to pay the Redemption Price on Securities called for redemption. If
such an agreement with one or more investment banks or other purchasers is
entered into, any Securities called for redemption and not surrendered for
conversion by the Holders thereof prior to the relevant Redemption Date may, at
the option of the Company upon written notice to the Trustee, be deemed, to the
fullest extent permitted by law, acquired by such purchasers from such Holders
and (notwithstanding anything to the contrary contained in Article 4)
surrendered by such purchasers for conversion, all as of 10:00 a.m., New York
City time, on the Redemption Date, subject to payment of the above amount as
aforesaid. The Paying Agent shall hold and pay to the Holders whose Securities
are selected for redemption any such amount paid to it for purchase in the same
manner as it would money deposited with it by the Company for the redemption of
Securities. Without the Paying Agent's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
Section 3.08 Repurchase Of Securities At Option Of The Holder Upon a Change
of Control.
(a) If a Change of Control occurs prior to the Final Maturity Date, each
Holder of a Security shall have the right (subject to the Company's rights upon
delivery of a Public Acquisition Notice as defined in Section 3.08(f)), at the
option of the Holder, to require the Company to repurchase for cash all or any
portion of the Securities of such Holder equal to $1,000 principal amount (or an
integral multiple thereof) at the Change of Control Repurchase Price, on the
date that is 30 Business Days after the date of the Change of Control Company
Notice pursuant to subsection 3.08(b) (the "Change of Control Repurchase Date").
(b) On or before the 30th day after the Company knows or reasonably should
know that a Change of Control has occurred, the Company shall mail a written
notice of the Change of Control and of the resulting repurchase right to the
26
Trustee, Paying Agent and to each Holder (and to beneficial owners as required
by applicable law) (the "Change of Control Company Notice"). The Change of
Control Company Notice shall include the form of a Change of Control Repurchase
Notice to be completed by the Holder and shall state:
(1) the events causing such Change of Control;
(2) the date (or expected date) of such Change of Control;
(3) the last date by which the Change of Control Repurchase Notice
must be delivered to elect the repurchase option pursuant to this Section
3.08;
(4) the Change of Control Repurchase Date;
(5) the Change of Control Repurchase Price;
(6) the Holder's right to require the Company to purchase the
Securities;
(7) the name and address of each Paying Agent and Conversion Agent;
(8) the then effective Conversion Rate and any adjustments to the
Conversion Rate resulting from such Change of Control;
(9) the procedures that the Holder must follow to exercise rights
under Article 4 and that Securities as to which a Change of Control
Repurchase Notice has been given may be converted into Common Stock
pursuant to Article 4 of this Indenture only to the extent that the Change
of Control Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(10) the procedures that the Holder must follow to exercise rights
under this Section 3.08;
(11) the procedures for withdrawing a Change of Control Repurchase
Notice;
(12) that, unless the Company fails to pay such Change of Control
Repurchase Price, Securities covered by any Change of Control Repurchase
Notice will cease to be outstanding and interest and Liquidated Damages, if
any, will cease to accrue on and after the Change of Control Repurchase
Date; and
(13) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Change of Control Company
Notice in the Company's name and at the Company's expense; provided, that, in
all cases, the text of such Change of Control Company Notice shall be prepared
by the Company. In connection with the delivery of the Change of Control Company
Notice to the Holders, the Company shall publish a notice containing
substantially the same information that is required in the Change of Control
Company Notice in a newspaper of general circulation in the City of New York or
publish information on a website of the Company or through such other public
27
medium the Company may use at that time. If any of the Securities is in the form
of a Global Security, then the Company shall modify such notice to the extent
necessary to accord with the Applicable Procedures relating to the purchase of
Global Securities.
(c) A Holder may exercise its rights specified in Section 3.08(a) upon
delivery of a written notice (which shall be in substantially the form attached
as Exhibit A under the heading "Change of Control Repurchase Notice" and which
may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global Securities,
may be delivered electronically or by other means in accordance with the
Depositary's Applicable Procedures) of the exercise of such rights (a "Change of
Control Repurchase Notice") to the Company or any Paying Agent at any time prior
to the close of business on the Business Day next preceding the Change of
Control Repurchase Date, subject to extension to comply with applicable law.
(1) The Change of Control Repurchase Notice shall state: (A) the
certificate number (if such Security is held other than in global form) of
the Security which the Holder will deliver to be purchased (or, if the
Security is held in global form, any other items required to comply with
the Applicable Procedures), (B) the portion of the principal amount of the
Security which the Holder will deliver to be purchased and (C) that such
Security shall be purchased as of the Change of Control Repurchase Date
pursuant to the terms and conditions specified in the Securities and in
this Indenture.
(2) The delivery of a Security for which a Change of Control
Repurchase Notice has been timely delivered to any Paying Agent and not
validly withdrawn prior to, on or after the Change of Control Repurchase
Date (together with all necessary endorsements) at the office of such
Paying Agent shall be a condition to the receipt by the Holder of the
Change of Control Repurchase Price therefor.
(3) The Company shall only be obliged to purchase, pursuant to this
Section 3.08, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000 (provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security).
(4) Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change of Control Repurchase Notice
contemplated by this Section 3.08(c) shall have the right to withdraw such
Change of Control Repurchase Notice in whole or in a portion thereof that
is a principal amount of $1,000 or in an integral multiple thereof at any
time prior to the close of business on the Business Day prior to the Change
of Control Repurchase Date by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.09.
(5) A Paying Agent shall promptly notify the Company of the receipt by
it of any Change of Control Repurchase Notice or written withdrawal
thereof.
(6) Anything herein to the contrary notwithstanding, in the case of
Global Securities, any Change of Control Repurchase Notice may be delivered
or withdrawn and such Securities may be surrendered or delivered for
purchase in accordance with the Applicable Procedures as in effect from
time to time.
28
(d) If a Change of Control also constitutes a Public Acquirer Change of
Control, instead of paying the Change of Control Repurchase Price in cash, and
instead of permitting the conversion of Securities as set forth under Section
4.01, the Company may elect to adjust the Conversion Rate and related conversion
obligation, such that from and after the Change of Control Effective Date of the
Public Acquirer Change of Control the Securities shall be convertible into
shares of Public Acquirer Common Stock.
(e) In the event that the Company makes an election pursuant to Section
3.08(d) hereof, Holders shall not be permitted to require the Company to
repurchase or to convert Securities and the Conversion Rate shall be adjusted by
multiplying the Conversion Rate in effect immediately before the Public Acquirer
Change of Control by the following fraction:
(A) the numerator of which shall be (1) in the case of a merger,
consolidation or binding share exchange pursuant to which the
Company's Common Stock is converted into cash, securities or other
property, the value of all cash and any other consideration, as
determined by the Company's Board of Directors, paid or payable per
share of Common Stock or (2) in the case of any other Public Acquirer
Change of Control, the average of the Closing Prices of the Company's
Common Stock for the five consecutive Trading Days prior to but
excluding the Change of Control Effective Date of such Public Acquirer
Change of Control, and
(B) the denominator of which will be the average of the Closing
Prices of the Public Acquirer Common Stock for the five consecutive
Trading Days prior to but excluding the Change of Control Effective
Date of such Public Acquirer Change of Control.
(f) Not later than 10 Trading Days prior to the expected Change of Control
Effective Date of a Public Acquirer Change of Control, the Company shall provide
to all Holders of the Securities and the Trustee, Conversion Agent, and Paying
Agent a notification (a "Public Acquisition Notice") stating whether the Company
shall:
(A) elect to adjust the Conversion Rate and related conversion
obligation under Section 3.08(e), in which case the Holders shall not
have the right (1) to require the Company to repurchase their
Securities as described in Section 3.08, or (2) to convert Securities
and, if applicable, receive the Make Whole Premium described in
Article 4, or
(B) not elect to adjust the Conversion Rate and related
conversion obligation under Section 3.08(e), in which case the Holders
shall have the right, if applicable, (1) to require the Company to
repurchase their Securities as described in Section 3.08, or (2) to
convert Securities and, if applicable, receive the Make Whole Premium
described in Article 4.
(g) The Company shall deposit cash at the time and in the manner as
provided in Section 3.10, sufficient to pay the aggregate Change of Control
Repurchase Price of all Securities to be purchased pursuant to this Section
3.08.
29
Section 3.09 Effect Of Change of Control Repurchase Notice.
(a) Upon receipt by any Paying Agent of a properly completed Change of
Control Repurchase Notice from a Holder, the Holder of the Security in respect
of which such Change of Control Repurchase Notice was given shall (unless such
Change of Control Repurchase Notice is withdrawn as specified in Section 3.09(b)
or the Company has elected to adjust the Conversion Rate in lieu of permitting
Holders to require the Company to repurchase Securities as described in Section
3.08(d)) thereafter be entitled to receive the Change of Control Repurchase
Price with respect to such Security, subject to the occurrence of the Change of
Control Effective Date. Such Change of Control Repurchase Price shall be paid to
such Holder promptly following the later of (1) the Change of Control Repurchase
Date (provided that the conditions in Section 3.08 have been satisfied) and (2)
the time of delivery of such Security to a Paying Agent by the Holder thereof in
the manner required by Section 3.08(c). Securities in respect of which a Change
of Control Repurchase Notice has been given by the Holder thereof may not be
converted into shares of Common Stock pursuant to Article 4 on or after the date
of the delivery of such Change of Control Repurchase Notice unless such Change
of Control Repurchase Notice has first been validly withdrawn in accordance with
Section 3.09(b) with respect to the Securities to be converted.
(b) A Change of Control Repurchase Notice may be withdrawn by means of a
written notice (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) of withdrawal delivered by the Holder
to a Paying Agent at any time prior to the close of business on the Business Day
immediately prior to the Change of Control Repurchase Date, specifying (1) the
principal amount of the Security or portion thereof (which must be a principal
amount of $1,000 or an integral multiple of $1,000 in excess thereof) with
respect to which such notice of withdrawal is being submitted, (2) if
certificated Securities have been issued, the certificate number of the Security
being withdrawn in whole or in withdrawable part (or if the Securities are not
certificated, such written notice must comply with the procedures of the
Depositary) and (3) the portion of the principal amount of the Security that
will remain subject to the Change of Control Repurchase Notice, which portion
must be a principal amount of $1,000 or an integral multiple thereof.
Section 3.10 Deposit Of Change of Control Repurchase Price.
(a) On or before 10:00 a.m. New York City time on the Business Day
following the applicable Change of Control Repurchase Date, the Company shall
deposit with the Trustee or with a Paying Agent (or if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and hold
in trust as provided in Section 2.04) an amount of money (in immediately
available funds if deposited on or after such Change of Control Repurchase
Date), sufficient to pay the aggregate Change of Control Repurchase Price of all
the Securities or portions thereof that are to be purchased as of Change of
Control Repurchase Date.
(b) If a Paying Agent or the Trustee holds, in accordance with the terms
hereof, money sufficient to pay the Change of Control Repurchase Price of any
Security for which a Change of Control Repurchase Notice has been tendered and
not withdrawn in accordance with this Indenture then, on the Business Day
30
following the applicable Change of Control Repurchase Date, such Security will
cease to be outstanding, whether or not the Security is delivered to the Paying
Agent or the Trustee, and interest and Liquidated Damages, if any, shall cease
to accrue, and the rights of the Holder in respect of the Security shall
terminate (other than the right to receive the Change of Control Repurchase
Price as aforesaid). The Company shall publicly announce the principal amount of
Securities repurchased on or as soon as practicable after the Change of Control
Repurchase Date.
(c) The Paying Agent will promptly return to the respective Holders thereof
any Securities with respect to which a Change of Control Repurchase Notice has
been withdrawn in compliance with this Indenture.
(d) If a Change of Control Repurchase Date falls after a Regular Record
Date and on or before the related Interest Payment Date, then interest on the
Securities payable on such Interest Payment Date will be payable to the Holders
in whose names the Securities are registered at the close of business on such
Regular Record Date.
Section 3.11 Repayment To The Company.
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 3.10 exceeds the aggregate Change of Control Repurchase
Price of the Securities or portions thereof that the Company is obligated to
purchase, then promptly after the Change of Control Repurchase Date the Trustee
or a Paying Agent, as the case may be, shall return any such excess cash to the
Company.
Section 3.12 Purchase Of Securities At Option Of The Holder On Specified
Dates.
(a) Securities shall be purchased in cash in whole or in part (which must
be equal to $1,000 principal amount or any integral multiple thereof) by the
Company, at the option of Holders, in accordance with the provisions of this
Section 3.12 and paragraph 8 of the Securities promptly on February 15, 2010,
February 15, 2015 and February 15, 2020 (each, a "Put Right Purchase Date"), or
the time of the surrender of the Securities, if later, for cash at a purchase
price equal to 100% of the principal amount of the surrendered securities
together with accrued but unpaid interest, if any, and Liquidated Damages, if
any, up to but not including the applicable Put Right Purchase Date (the "Put
Right Purchase Price"); provided that if the Put Right Purchase Date falls after
a Regular Record Date and on or before the related Interest Payment Date, then
interest on the Securities payable on such Interest Payment Date will instead be
payable to the Holders in whose names the Securities are registered at the close
of business on such Regular Record Date.
(b) Unless the Company has issued a notice to redeem the Securities
pursuant to Section 3.03 hereof, the Company shall give written notice of the
applicable Put Right Purchase Date by notice sent by first-class mail to the
Trustee and to each Holder (at its address shown in the register of the
Registrar) not less than 20 Business Days prior to each Put Right Purchase Date
(the "Company Put Right Notice"). Each Company Put Right Notice shall include a
form of Put Right Purchase Notice to be completed by a Holder and shall state:
31
(1) the Put Right Purchase Price, for the applicable Put Right
Purchase Date and the Conversion Rate then in effect;
(2) the name and address of the Paying Agent and the Conversion Agent;
(3) that Securities as to which a Put Right Purchase Notice has been
given may be converted, if they are otherwise convertible, only in
accordance with Article 4 and paragraph 9 of the Securities and only to the
extent that the Put Right Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(4) that Securities must be surrendered to the Paying Agent as a
condition to collecting payment of the Put Right Purchase Price;
(5) that the Put Right Purchase Price for any Security as to which a
Put Right Purchase Notice has been given and not withdrawn will be paid
promptly following the later of the Put Right Purchase Date and the time of
surrender of such Security as described in subclause (4) above;
(6) the procedures the Holder must follow to exercise rights under
this Section 3.12 and a brief description of those rights;
(7) briefly, the conversion rights of the Securities, if the
Securities are convertible at that time;
(8) the procedures for withdrawing a Put Right Purchase Notice
(including a summary of the terms of Section 3.12(g));
(9) that, unless the Company fails to pay such Put Right Purchase
Price on Securities for which a Put Right Purchase Notice has been
submitted, such Securities shall no longer be outstanding and interest and
Liquidated Damages, if any, on such Securities will cease to accrue on and
after the Put Right Purchase Date; and
(10) the CUSIP number of the Securities.
(c) If any of the Securities are to be redeemed in the form of a Global
Security, the Company shall modify such notice to the extent necessary to accord
with the Applicable Procedures relating to repurchases.
(d) At the Company's request, the Trustee shall give such Company Put Right
Notice on behalf of the Company 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; provided further that the Company shall make such request and
deliver the text of such Company Put Right Notice at least five Business Days
prior to the date by which such Company Put Right Notice must be given in
accordance with this Section 3.12.
(e) To exercise its rights pursuant to this Section 3.12, the Holder shall
deliver to the Paying Agent a properly completed put right purchase notice
(each, a "Put Right Purchase Notice") at any time from the opening of business
32
on the date that is 20 Business Days prior to the applicable Put Right Purchase
Date until the close of business on the Business Day immediately preceding the
Put Right Purchase Date stating:
(1) if certificated Securities have been issued, the certificate
number of the Security that the Holder will deliver for repurchase (or if
the Securities are not certificated, the Put Right Purchase Notice must
comply with the Applicable Procedures relating to purchases),
(2) the portion of the principal amount of the Security which the
Holder will deliver to be purchased, which portion must be a principal
amount of $1,000 or an integral multiple thereof, and
(3) that such Security shall be purchased as of the applicable Put
Right Purchase Date pursuant to the terms and conditions in this Section
3.12 and the Securities.
(f) The Company shall pay the Put Right Purchase Price for all Securities
with respect to which a Put Right Purchase Notice is given and not validly
withdrawn, upon the later of the Business Day following the applicable Put Right
Purchase Date and delivery of such Securities to the Paying Agent (together with
all necessary endorsements) at the offices of the Paying Agent (if the
Securities are not certificated, such delivery must comply with the Applicable
Procedures relating to purchases). Delivery of such Security shall be a
condition to receipt by the Holder of the Put Right Purchase Price therefor. The
Put Right Purchase Price shall be paid pursuant to this Section 3.12 only if the
Security delivered to the Paying Agent conforms in all respects to the
description thereof in the related Put Right Purchase Notice, as determined by
the Company.
(g) Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Put Right Purchase Notice contemplated by this Section
3.12 shall have the right to withdraw such Put Right Purchase Notice in whole or
in part at any time prior to the close of business on the Business Day
immediately preceding the applicable Put Right Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent specifying:
(1) the aggregate principal amount of the Security (which must be
equal to $1,000 or any integral multiple thereof) with respect to which
such notice of withdrawal is being submitted,
(2) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted (or, if the Securities
are not certificated, the withdrawal notice must comply with the Applicable
Procedures relating to withdrawals), and (3) the aggregate principal
amount, if any, of such Security which remains subject to the original Put
Right Purchase Notice and which has been or will be delivered for purchase
by the Company.
(h) The Paying Agent shall promptly notify the Company of the receipt by it
of any Put Right Purchase Notice or written notice of withdrawal thereof.
33
(i) On or before 10:00 a.m. New York City time on the Business Day
following the applicable Put Right Purchase Date, the Company shall deposit with
the Trustee or with the Paying Agent (or if the Company or an Affiliate of the
Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of money (in immediately available funds if
deposited on or after such Put Right Purchase Date) sufficient to pay the
aggregate Put Right Purchase Price of all the Securities or portions thereof
which are to be purchased as of the Put Right Purchase Date.
(1) If a Paying Agent holds, in accordance with the terms hereof,
money sufficient to pay the Put Right Purchase Price of any Security for
which a Put Right Notice has been tendered and not withdrawn, then, on the
Business Day after the Put Right Purchase Date, such Security will cease to
be outstanding, and interest and Liquidated Damages, if any, shall cease to
accrue, whether or not the Security is delivered to the Paying Agent, and
the rights of the Holder in respect of the Security shall terminate (other
than the right to receive the Put Right Purchase Price as aforesaid).
(2) The Put Right Purchase Price shall be paid to such Holder with
respect to Securities for which a Put Right Purchase Notice has been
tendered and not validly withdrawn, subject to receipt of funds by the
Paying Agent, promptly after the later of (A) the applicable Put Right
Purchase Date with respect to such Security (provided that the conditions
in Section 3.12(f) have been satisfied) and (B) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner
required by Section 3.12(f). Securities in respect of which a Put Right
Purchase Notice has been given by the Holder thereof, if convertible
pursuant to Article 4, may not be converted on or after the date of the
delivery of such Put Right Purchase Notice, unless such Put Right Purchase
Notice has first been validly withdrawn as specified in Section 3.12(g).
(3) To the extent that the aggregate amount of cash deposited by the
Company pursuant to this Section 3.12(i) exceeds the aggregate Put Right
Purchase Price of the Securities or portions thereof that the Company is
obligated to purchase, then promptly after the Put Right Purchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such excess
cash to the Company, or if such money is then held by the Company in trust,
it shall be discharged from the trust.
(j) The Company shall only be obligated to purchase, pursuant to this
Section 3.12, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Section 3.13 Securities Purchased In Part.
Any Security that is to be purchased only in part shall be surrendered at
the office of a Paying Agent, and promptly after the Change of Control
Repurchase Date or the Put Right Purchase Date, as the case may be, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder
34
(which must be equal to $1,000 principal amount or any integral thereof), in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased.
Section 3.14 Compliance With Securities Laws Upon Purchase Of Securities.
In connection with any offer to purchase of Securities under Section 3.08
or Section 3.12, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or
any successor to either such Rule), and any other tender offer rules, if
applicable, under the Exchange Act, (b) file the related Schedule TO (or any
successor or similar schedule, form or report) if required under the Exchange
Act, and (c) otherwise comply with all federal and state securities laws in
connection with such offer to purchase or purchase of Securities, all so as to
permit the rights of the Holders and obligations of the Company under Sections
3.08 through 3.12 to be exercised in the time and in the manner specified
therein. To the extent that compliance with any such laws, rules and regulations
would result in a conflict with any of the terms hereof, this Indenture is
hereby modified to the extent required for the Company to comply with such laws,
rules and regulations.
Section 3.15 Purchase Of Securities In Open Market.
The Company (a) shall, on or prior to the date that is two years from the
latest issuance of any Securities in accordance with Section 2.11 surrender any
Security purchased by the Company pursuant to this Article 3 to the Trustee for
cancellation, and (b) after such date, may surrender such Security to the
Trustee for cancellation as aforesaid. Any Securities surrendered to the Trustee
for cancellation may not be reissued or resold by the Company and will be
canceled promptly in accordance with Section 2.11. The Company may repurchase
Securities in open market and negotiated transactions.
35
ARTICLE 4
CONVERSION
Section 4.01 Conversion Privilege And Conversion Rate.
(a) Subject to the obligation and the right of the Company to pay some or
all of the conversion consideration in cash in accordance with Section 4.14, and
upon compliance with the provisions of this Article 4, at the option of the
Holder thereof, any Security or portion thereof that is an integral multiple of
$1,000 principal amount may be converted into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock prior to the close of business on the Business Day immediately
preceding the Final Maturity Date or such earlier date set forth in this Article
4, unless previously redeemed by the Company or purchased by the Company at the
Holders' option, at the Conversion Rate in effect at such time, determined as
hereinafter provided, in effect at the time of conversion and subject to the
adjustments described below, only under the following circumstances:
(1) during any calendar quarter commencing after March 31, 2005, and
only during such calendar quarter, if, as of the last day of the
immediately preceding calendar quarter, the Closing Price per share of the
Common Stock for at least 20 Trading Days in the period of the 30
consecutive Trading Days ending on the last Trading Day of such preceding
calendar quarter was more than 120% of the Conversion Price;
(2) until the close of business on the Business Day immediately
preceding the Redemption Date if the Company elects to redeem the relevant
Security pursuant to Article 3;
(3) if the Company distributes to all holders of Common Stock rights
or warrants entitling them to purchase, for a period expiring within 45
days of the date of issuance, Common Stock at less than the Closing Price
per share of the Common Stock on the day of issuance;
(4) if the Company distributes to all holders of Common Stock, assets,
debt securities or rights to purchase the Company's securities, which
distribution has a per share value exceeding 7.5% of the Closing Price per
share of the Common Stock on the Business Day preceding the declaration
date for such distribution;
(5) subject to the Company's rights under Section 3.08(d), if the
Company is a party to a consolidation, merger or binding share exchange
pursuant to which the Company's Common Stock would be converted into cash,
securities or other property (unless the transaction also constitutes a
Change of Control);
(6) subject to the Company's rights under Section 3.08(d), if a Change
of Control occurs;
(7) at any time during the period beginning ten Trading Days prior to
the Final Maturity Date and ending at the close of business on the Business
Day immediately preceding the Final Maturity Date; or
36
(8) during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount
of Securities, as determined following a request by a Holder in accordance
with the procedures described below in Section 4.01(e), for each day of
that period was less than 98% of the product of the Closing Price of the
Company's Common Stock and the Conversion Rate per $1,000 principal amount
of securities.
(b) In the case of a distribution contemplated by clauses (3) and (4) of
Section 4.01(a), the Company shall notify Holders at least 20 days prior to the
ex-dividend date for such distribution (the "Distribution Notice"). Once the
Company has given the Distribution Notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of business
on the last Business Day preceding the ex-dividend date (the first date on which
the Common Stock trades, regular way, on the relevant market from which the
Closing Price was obtained without the right to receive such right, warrant,
dividend or distribution) or the Company's announcement that such distribution
will not take place. In the event of a distribution contemplated by clauses (3)
and (4) of Section 4.01(a), Holders may not convert the Securities if the
Holders will otherwise participate in such distribution without converting their
Securities. The Company will provide written notice to the Conversion Agent as
soon as reasonably practicable of any anticipated or actual event or transaction
that will cause or causes the Securities to become convertible pursuant to
clauses (3) or (4) of Section 4.01(a).
(c) In the case of a transaction contemplated by clause (5) of Section
4.01(a) (regardless of whether the transaction constitutes a Change of Control),
the Company will notify Holders at least 20 days prior to the anticipated
effective date of such transaction (the "Merger Notice"). Holders may surrender
Securities for conversion at any time from and after the date which is 15 days
prior to the anticipated effective date of such transaction until (but not
including) the date which is 15 days after the actual effective date of such
transaction.
(d) In the case of a transaction contemplated by clause (6) of Section
4.01(a), the Company will notify the Holders and Trustee at least 10 Trading
Days prior to the Change of Control Effective Date of any Change of Control that
the Company knows or reasonably should know will occur. Subject to Section
3.08(d) hereof, Holders may surrender Securities for conversion at any time
beginning 10 Trading Days before the anticipated Change of Control Effective
Date of a Change of Control and until the Change of Control Repurchase Date.
(e) (i) For each calendar quarter of the Company, beginning with the
calendar quarter ending March 31, 2005, the Conversion Agent, on behalf of the
Company, will determine, on the first Business Day following the last Trading
Day of such calendar quarter, whether the Securities are convertible pursuant to
clause (1) of Section 4.01(a), and, if so, will notify the Trustee and the
Company in writing.
(ii) The Trustee shall have no obligation to determine the Trading Price of
the Securities and whether the Securities are convertible pursuant to clause (8)
of Section 4.01(a) unless the Company has requested such determination; and the
Company shall have no obligation to make such request unless a Holder of the
Securities provides the Company with reasonable evidence that the Trading Price
per $1,000 principal amount of Securities would be less than 98% of the product
of the Closing Price of our Common Stock and the Conversion Rate per $1,000
principal amount of Securities. At such time, the Company shall instruct the
37
Trustee to determine the Trading Price of the Securities beginning on the next
Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Securities is greater than 98% of the product of
the Closing Price of the Company's Common Stock and the Conversion Rate per
$1,000 principal amount of the Securities.
(f) The conversion rights pursuant to this Article 4 shall commence on the
initial issuance date of the Securities and expire at the close of business on
the Business Day immediately preceding the Final Maturity Date, but shall be
exercisable only during the time periods specified with respect to each
circumstance pursuant to which the Securities become convertible, subject, in
the case of conversion of any Global Security, to any Applicable Procedures. If
a Security is called for redemption or submitted or presented for purchase
pursuant to Article 3, such conversion right shall terminate at the close of
business on the Business Day immediately preceding the Redemption Date, Put
Right Purchase Date or Change of Control Repurchase Date for such Security
(unless the Company shall fail to make the Redemption Price, Put Right Purchase
Price, or Change of Control Repurchase Price payment when due in accordance with
Article 3, in which case the conversion right shall terminate at the close of
business on the date such failure is cured and such Security is redeemed or
purchased, as the case may be). If a Security is convertible as a result of a
Change of Control, such conversion right shall commence and terminate as set
forth in Section 4.01(d). Securities in respect of which a Change of Control
Repurchase Notice or a Put Right Purchase Notice, as the case may be, has been
delivered may not be surrendered for conversion pursuant to this Article 4 prior
to a valid withdrawal of such Change of Control Notice or Put Right Purchase
Notice, as the case may be, in accordance with the provisions of Article 3.
(g) Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
(h) A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock,
and only to the extent such Securities are deemed to have been converted into
Common Stock pursuant to this Article 4.
(i) The Conversion Rate shall be adjusted in certain instances as provided
in Section 4.01(j) and Section 4.06.
(j) If prior to February 15, 2010, there shall have occurred a Change of
Control and more than 10% of the consideration for the Common Stock in the
transaction or transactions constituting the Change of Control consists of cash,
other than cash payments for fractional shares and cash payments made in respect
of dissenters' appraisal rights, then, subject to the provisions of Section
3.08(d) regarding a Public Acquirer Change of Control, the Company shall pay a
"Make Whole Premium" to the Holders of the Securities who convert their
Securities during the period beginning 10 Trading Days before the anticipated
Change of Control Effective Date and ending on the Change of Control Repurchase
Date by increasing the Conversion Rate for such Securities. The number of
additional shares of Common Stock per $1,000 principal amount of Securities
constituting the Make Whole Premium shall be determined by reference to the
table below, based on the Change of Control Effective Date of such Change of
38
Control and the Stock Price of such Change of Control; provided that if the
Stock Price or Change of Control Effective Date are not set forth on the table:
(i) if the actual Stock Price on the Change of Control Effective Date is between
two Stock Prices on the table or the actual Change of Control Effective Date is
between two Change of Control Effective Dates on the table, the Make Whole
Premium will be determined by a straight-line interpolation between the Make
Whole Premiums set forth for the two Stock Prices and the two Change of Control
Effective Dates on the table based on a 365-day year, as applicable, (ii) if the
Stock Price on the Change of Control Effective Date exceeds $100 per share,
subject to adjustment as set forth herein, no Make Whole Premium will be paid,
and (iii) if the Stock Price on the Change of Control Effective Date is less
than $10.88 per share, subject to adjustment as set forth herein, no Make Whole
Premium will be paid. If Holders of our Common Stock receive only cash in the
transaction, the Stock Price shall be the cash amount paid per share of our
Common Stock in connection with the Change of Control. Otherwise, the Stock
Price shall be equal to the average Closing Price of our Common Stock over the
five Trading Day period ending on the Trading Day immediately preceding the
applicable Change of Control Effective Date.
Make Whole Premium Upon a Change of Control (Number of Additional Shares)
Change of Control Effective Date
---------------- ----------------------------------------------------------------------
Stock Price on February February February February February February
Change of 8, 2005 8, 2006 8, 2007 8, 2008 8, 2009 8, 2010
Control -------- -------- -------- -------- -------- --------
Effective Date
---------------
$ 10.88..... 16.26 15.64 15.02 14.61 14.49 0.00
$ 12.00..... 13.63 12.74 11.71 10.64 9.33 0.00
$ 13.00..... 11.89 10.87 9.64 8.26 6.37 0.00
$ 14.00..... 10.55 9.46 8.14 6.71 4.49 0.00
$ 15.00..... 9.49 8.38 7.03 5.45 3.32 0.00
$ 16.00..... 8.63 7.54 6.20 4.64 2.60 0.00
$ 17.00..... 7.93 6.87 5.56 4.05 2.16 0.00
$ 18.00..... 7.35 6.32 5.06 3.62 1.87 0.00
$ 19.00..... 6.86 5.86 4.66 3.29 1.68 0.00
$ 20.00..... 6.43 5.48 4.33 3.05 1.56 0.00
$ 25.00..... 5.04 4.26 3.34 2.34 1.21 0.00
$ 30.00..... 4.17 3.52 2.76 1.94 1.01 0.00
$ 40.00..... 3.12 2.64 2.07 1.49 0.76 0.00
$ 50.00..... 2.50 2.12 1.66 1.17 0.60 0.00
$ 75.00..... 1.67 1.42 1.11 0.79 0.40 0.00
$100.00...... 1.26 1.07 0.83 0.59 0.30 0.00
The Stock Prices set forth in the first column of the table above will be
adjusted as of any date on which the Conversion Rate of the Securities is
adjusted. The adjusted Stock Prices will equal the Stock Prices applicable
immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to
the Stock Price adjustment and the denominator of which is the Conversion Rate
as so adjusted. The number of additional shares set forth in the table above
will be adjusted in the same manner as the Conversion Rate as set forth in
Section 4.06 hereof, other than as a result of an adjustment of the Conversion
Rate by adding the Make Whole Premium as described above.
39
Notwithstanding the foregoing paragraph, in no event will the total number
of shares of Common Stock issuable upon conversion of a Security exceed 91.9117
per $1,000 principal amount, subject to proportional adjustment in the same
manner as the Conversion Rate as set forth in clauses (1) through (4) of Section
4.06(a) hereof.
(k) By delivering the amount of cash and/or the number of shares of Common
Stock issuable on conversion to the Trustee, the Company will be deemed to have
satisfied its obligation to pay the principal amount of the Securities so
converted and its obligation to pay accrued and unpaid interest, and Liquidated
Damages if any, attributable to the period from the most recent Interest Payment
Date through the Conversion Date (which amount will be deemed paid in full
rather than cancelled, extinguished or forfeited).
(l) Notwithstanding anything else contained herein, the Securities shall
not become subject to conversion by reason of a merger, consolidation, or other
transaction effected with one of the Company's direct or indirect Subsidiaries
for the purpose of changing the Company's state of incorporation to any other
state within the United States or the District of Columbia.
Section 4.02 Conversion Procedure.
(a) To convert a Security, a Holder must (1) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (2) surrender the Security to a Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (4) pay all transfer or similar taxes, if required
pursuant to Section 4.04. The date on which the Holder satisfies all of those
requirements is the "Conversion Date." Upon the conversion of a Security, the
Company will pay the cash and deliver the shares of Common Stock, as applicable,
as promptly as practicable after the later of the Conversion Date and the date
that all calculations necessary to make such payment and delivery have been
made, but in no event later than five Business Days after the later of those
dates. Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be
surrendered for conversion in accordance with the Applicable Procedures as in
effect from time to time.
(b) The person in whose name the shares of Common Stock are issuable upon
conversion shall be deemed to be a holder of record of such Common Stock on the
later of (i) the Conversion Date, (ii) the expiration of the period in which the
Company may elect to deliver cash in lieu of shares of Common Stock, or (iii) if
the Company elects to deliver cash in lieu of some, but not all, of such shares
of Common Stock, the date on which the amount of cash issuable per Security has
been determined; provided, however, that no surrender of a Security on any
Conversion 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 conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such shares of Common Stock
as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
provided further that such conversion shall be at the Conversion Rate in effect
on the Conversion Date as if the stock transfer books of the Company had not
40
been closed. Upon conversion of a Security, such person shall no longer be a
Holder of such Security. Except as set forth in this Indenture, no payment or
adjustment will be made for dividends or distributions declared or made on
shares of Common Stock issued upon conversion of a Security prior to the
issuance of such shares.
(c) Holders of Securities surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption) will receive the
semi-annual interest payable on such Securities on the corresponding Interest
Payment Date notwithstanding the conversion. Upon surrender of any such
Securities for conversion, unless such Securities are being converted solely
pursuant to Section 4.01(a)(2), such Securities shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such corresponding Interest Payment Date. Except as otherwise
provided in this Section 4.02(c), no payment or adjustment will be made for
accrued interest on a converted Security.
(d) Subject to Section 4.02(c), nothing in this Section shall affect the
right of a Holder in whose name any Security is registered at the close of
business on a Regular Record Date to receive the interest payable on such
Security on the related Interest Payment Date in accordance with the terms of
this Indenture, the Securities and the Registration Rights Agreement. If a
Holder converts more than one Security at the same time, the amount of cash to
be paid and the number of shares of Common Stock issuable upon the conversion,
if any, (and the amount of any cash in lieu of fractional shares pursuant to
Section 4.03) shall be based on the aggregate principal amount of all Securities
so converted.
(e) In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, without service charge, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the, and in exchange for, unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount
of such part is an integral multiple of $1,000 and the principal amount of such
Security to remain outstanding after such conversion is equal to $1,000 or any
integral multiple of $1,000 in excess thereof.
(f) Upon the Company's determination that a Holder is or will be entitled
to convert their Securities into shares of Common Stock pursuant to this Article
4, the Company will promptly after making such determination issue a press
release and use its reasonable efforts to post such information on the Company's
website or otherwise publicly disclose such information.
Section 4.03 Fractional Shares.
The Company will not issue fractional shares of Common Stock upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall
be issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. In lieu of any fractional shares, the Company
will pay an amount in cash for the current market value of the fractional
shares. The current market value of a fractional share shall be determined
41
2
(calculated to the nearest 1/100th of a share) by multiplying the Closing Price
of the Common Stock on the Conversion Date by such fractional share and rounding
the product to the nearest whole cent.
Section 4.04 Taxes On Conversion.
If a Holder converts a Security, the Holder shall pay any transfer, stamp
or similar taxes or duties related to the issue or delivery of shares of Common
Stock upon such conversion. The Holder shall also pay any such tax with respect
to cash received in lieu of fractional shares. In addition, the Holder shall pay
any such tax which is due because the Holder requests the shares to be issued in
a name other than the Holder's name. The Conversion Agent may refuse to deliver
the certificate representing the Common Stock being issued in a name other than
the Holder's name until the Conversion Agent receives a sum sufficient to pay
any tax which will be due because the shares are to be issued in a name other
than the Holder's name. Nothing herein shall preclude any tax withholding
required by law or regulation.
Section 4.05 Company To Provide Stock.
(a) The Company shall, prior to issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit
the conversion of all outstanding Securities into shares of Common Stock.
(b) All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares, shall be duly authorized, validly issued, fully
paid and nonassessable and shall be free from preemptive or similar rights and
free of any lien or adverse claim as the result of any action by the Company.
(c) The Company will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities.
(d) Shares of Common Stock delivered upon conversion of any Security to or
for the benefit of non-United States citizens or entities shall be subject to
the provisions regarding the voting thereof contained in Article Ninth of the
Company's Certificate of Incorporation and Article Seven of its By-laws, each a
amended and restated and shall bear the following legend:
"The Company's certificate of incorporation and bylaws restrict foreign
ownership of shares of the Company's stock. These restrictions currently
require that 75% of the voting stock must be owned or controlled, directly
or indirectly by "citizens of the United States," as such term is defined
in 49 U.S.C. 40102(a)(15) and in administrative interpretations thereof
issued by the Department of Transportation, its predecessors and
successors, from time to time. All non-U.S. citizens who own (beneficially
or of record) shares of the Company's common stock must register their
ownership of such shares with the Company. A holder of the shares of the
Company's common stock may be precluded from voting such shares at the time
of any vote of stockholders in the event that (i) the holder is not a
citizen of the United States and (ii) the foreign ownership of shares of
the Company's voting stock exceeds the limits imposed by U.S. federal law.
Upon request, the Company will provide the holder of this certificate with
a copy of its certificate of incorporation and bylaws."
42
3
Section 4.06 Adjustment Of Conversion Rate.
(a) The Conversion Rate shall be adjusted from time to time by the Company
as follows:
(1) If the Company shall pay a dividend or make a distribution to all
holders of outstanding Common Stock in shares of Common Stock, the
Conversion Rate in effect immediately prior to the record date for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior
to such record date by a fraction of which the numerator of shall be the
sum of the number of shares of Common Stock outstanding at the close of
business on such record date plus the total number of shares of Common
Stock constituting such dividend or other distribution and of which the
denominator shall be the number of shares of Common Stock outstanding at
the close of business on such record date. Such adjustment shall be made
successively whenever any such dividend or distribution is made and shall
become effective immediately after such record date. For the purpose of
this clause (1), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company.
The Company will not pay any dividend or make any distribution on Common
Stock held in the treasury of the Company. If any dividend or distribution
of the type described in this clause is declared but not so paid or made,
the Conversion Rate shall again be adjusted to the Conversion Rate that
would then be in effect if such dividend or distribution had not been
declared.
(2) If the Company shall subdivide its outstanding Common Stock into a
greater number of shares, or combine its outstanding Common Stock into a
smaller number of shares, the Conversion Rate in effect immediately prior
to the day upon which such subdivision or combination becomes effective
shall be, in the case of a subdivision of Common Stock, proportionately
increased and, in the case of a combination of Common Stock,
proportionately reduced. Such adjustment shall be made successively
whenever any such subdivision or combination of the Common Stock occurs and
shall become effective immediately after the date upon which such
subdivision or combination becomes effective.
(3) If the Company shall issue rights or warrants to all holders of
its outstanding Common Stock entitling them (for a period expiring within
45 days after such issuance) to subscribe for or purchase shares of Common
Stock (or securities convertible into Common Stock) at a price per share
(or having a conversion price per share) less than the Current Market Price
per share of Common Stock (as determined in accordance with clause (9) of
this Section 4.06(a)) on the record date for the determination of
shareholders entitled to receive such rights or warrants, the Conversion
Rate in effect immediately prior thereto shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on such record date plus the number of additional shares
of Common Stock offered (or into which the convertible securities so
offered are convertible) and of which the denominator shall be the number
of shares of Common Stock outstanding at the close of business on such
record date plus the number of shares which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or
43
4
purchase (or the aggregate conversion price of the convertible securities
so offered for subscription or purchase, which shall be determined by
multiplying the number of shares of Common Stock issuable upon conversion
of such convertible securities by the conversion price per share of Common
Stock pursuant to the terms of such convertible securities) would purchase
at the Current Market Price per share of Common Stock on such record date.
Such adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective immediately after such
record date. To the extent that shares of Common Stock (or securities
convertible into Common Stock) are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon
the issuance of such rights or warrants been made on the basis of delivery
of only the number of Common Shares actually delivered. If such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if the record date for
the determination of shareholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the shareholders to subscribe for or purchase shares of Common
Stock at a price less than the Current Market Price per share of Common
Stock and in determining the aggregate offering price of the total number
of shares of Common Stock so offered, there shall be taken into account any
consideration received by the Company for such rights or warrants and any
amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of
Directors.
(4) If the Company shall make a dividend or other distribution to all
holders of its Common Stock of Capital Stock, other than Common Stock, or
evidences of indebtedness or other assets of the Company (excluding (x) any
issuance of rights or warrants for which an adjustment was made pursuant to
Section 4.06(a)(3), and (y) any dividend or distribution paid exclusively
in cash for which an adjustment was made pursuant to Section 4.06(a)(6))
(the "Distributed Securities"), then in each such case (unless the Company
distributes such Distributed Securities for distribution to the Holders of
Securities on such dividend or distribution date (as if each Holder had
converted such Security into Common Stock immediately prior to the record
date with respect to such distribution) the Conversion Rate in effect
immediately prior to the record date fixed for the determination of
shareholders entitled to receive such dividend or distribution shall be
adjusted so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to such record date by a
fraction of which the numerator shall be the Current Market Price per share
of the Common Stock on such record date and of which the denominator shall
be Current Market Price per share on such record date less the fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive evidence of such fair market value and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) on such
record date of the portion of the Distributed Securities so distributed
44
5
applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding at the close of business on
such record date). Such adjustment shall be made successively whenever any
such distribution is made and shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
distribution. In the event that such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
If the then fair market value (as so determined) of the portion of the
Distributed Securities so distributed applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of the
Common Stock on such record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of a Security shall
have the right to receive upon conversion the amount of Distributed
Securities so distributed that such Holder would have received had such
Holder converted each Security on such record date. If the Board of
Directors determines the fair market value of any distribution for purposes
of this Section 4.06(a)(4) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices
in such market over the same period used in computing the Current Market
Price of the Common Stock.
Notwithstanding the foregoing, if the securities distributed by the
Company to all holders of its Common Stock consist of Capital Stock of, or
similar equity interests in, a Subsidiary or other business unit of the
Company (the "Spinoff Securities"), the Conversion Rate shall be adjusted,
unless the Company makes an equivalent distribution to the Holders of the
Securities, so that the same shall be equal to the rate determined by
multiplying the Conversion Rate in effect on the record date fixed for the
determination of shareholders entitled to receive such distribution by a
fraction, the numerator of which shall be the sum of (A) the average
Closing Price of one share of Common Stock over the ten consecutive Trading
Day period (the "Spinoff Valuation Period") commencing on and including the
fifth Trading Day after the date on which ex-dividend trading commences for
such distribution on the Nasdaq National Market or such other U.S. national
or regional exchange or market on which the Common Stock is then listed or
quoted and (B) the product of (i) the average Closing Price over the
Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the
number of Spinoff Securities distributed in respect of one share of Common
Stock and the denominator of which shall be the average Closing Price of
one share of Common Stock over the Spinoff Valuation Period, such
adjustment to become effective immediately prior to the opening of business
on the fifteenth Trading Day after the date on which ex-dividend trading
commences; provided, however, that the Company may in lieu of the foregoing
adjustment elect to make adequate provision so that each Holder of
Securities shall have the right to receive upon conversion thereof the
amount of such Spinoff Securities that such Holder of Securities would have
received if such Securities had been converted on the record date with
respect to such distribution.
(5) With respect to any rights or warrants (the "Rights") that may be
issued or distributed pursuant to any rights plan that the Company
implements after the date of this Indenture (each a "Rights Plan"), in lieu
of any adjustment required by any other provision of this Section 4.06 upon
conversion of the Securities into Common Stock, to the extent that such
Rights Plan is in effect upon such conversion, the Holders of Securities
will receive, with respect to the shares of Common Stock issued upon
45
6
conversion, the Rights described therein (whether or not the Rights have
separated from the Common Stock at the time of conversion), subject to the
limitations set forth in and in accordance with any such Rights Plan;
provided that if, at the time of conversion, however, the Rights have
separated from the shares of Common Stock in accordance with the provisions
of the Rights Plan so that Holders would not be entitled to receive any
rights in respect of the shares of Common Stock issuable upon conversion of
the Securities as a result of the timing of the Conversion Date, the
Conversion Rate will be adjusted as if the Company distributed to all
holders of Common Stock Distributed Securities as provided in the first
paragraph of clause (4) of this Section 4.06(a), subject to appropriate
readjustment in the event of the expiration, termination, repurchase or
redemption of the Rights. Any distribution of rights or warrants pursuant
to a Rights Plan complying with the requirements set forth in the
immediately preceding sentence of this paragraph shall not constitute a
distribution of rights or warrants pursuant to this Section 4.06(a). Other
than as specified in this clause (5) of this Section 4.06(a), there will
not be any adjustment to the Conversion Rate as the result of the issuance
of any Rights, the distribution of separate certificates representing such
Rights, the exercise or redemption of such Rights in accordance with any
Rights Plan or the termination or invalidation of any Rights.
(6) If the Company shall, by dividend or otherwise, at any time
distribute (a "Triggering Distribution") to all holders of its Common Stock
a payment consisting exclusively of cash (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary) the Conversion Rate shall
be increased so that the same shall equal the rate determined by
multiplying such Conversion Rate in effect immediately prior to the close
of business on the record date for such Triggering Distribution (a
"Determination Date") by a fraction of which the numerator shall be such
Current Market Price per share of the Common Stock on the Determination
Date and the denominator of which shall be the Current Market Price per
share of the Common Stock on the Determination Date less the amount of such
cash dividend or distribution applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock
outstanding at the close of business on the Determination Date), such
increase to become effective immediately prior to the opening of business
on the day following the date on which the Triggering Distribution is paid.
If the amount of cash dividend or distribution applicable to one share of
Common Stock is equal to or greater than the Current Market Price per share
of the Common Stock on the Determination Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of a
Security shall have the right to receive upon conversion the amount of cash
so distributed that such Holder would have received had such Holder
converted each Security on such Determination Date. In the event that such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such divided or distribution had not been declared.
(7) If any tender offer made by the Company or any of its Subsidiaries
for all or any portion of Common Stock shall expire, then, if the tender
offer shall require the payment to shareholders of consideration per share
of Common Stock having a fair market value (determined as provided below)
that exceeds the average of the Closing Price per share of Common Stock on
46
the Trading Day next succeeding the last date (the "Expiration Date")
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the "Expiration Time"), the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior
to the close of business on the Expiration Date by a fraction of which the
numerator shall be the sum of (A) the fair market value of the aggregate
consideration (the fair market value as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair
market value and which shall be evidenced by an Officers Certificate
delivered to the Trustee) payable to shareholders based on the acceptance
(up to any maximum specified in the terms of the tender offer) of all
shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (B) the product of the number of shares of Common
Stock outstanding (less any Purchased Shares and excluding any shares held
in the treasury of the Company) at the Expiration Time and the Closing
Price per share of Common Stock on the Trading Day next succeeding the
Expiration Date and the denominator of which shall be the product of the
number of shares of Common Stock outstanding (including Purchased Shares
but excluding any shares held in the treasury of the Company) at the
Expiration Time multiplied by the Closing Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Date, such increase
to become effective immediately prior to the opening of business on the day
following the Expiration Date. In the event that the Company is obligated
to purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would have been in
effect based upon the number of shares actually purchased, if any. If the
application of this clause (7) of Section 4.06(a) to any tender offer would
result in a decrease in the Conversion Rate, no adjustment shall be made
for such tender offer under this clause (7).
(8) For purposes of this Section 4.06, the term "tender offer" shall
mean and include both tender offers and exchange offers, all references to
"purchases" of shares in tender offers (and all similar references) shall
mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include
shares tendered in both tender offers and exchange offers.
(9) For the purpose of any computation under this Section 4.06(a), the
current market price (the "Current Market Price") per share of Common Stock
on any date shall be deemed to be the average of the Closing Prices for the
10 consecutive Trading Days ending on the earlier of (A) the Determination
Date or the Expiration Date, as the case may be, with respect to
distributions or tender offers under this Section 4.06(a) or (B) the
"ex-date" with respect to distributions, issuances or other events
requiring such computation under this Section 4.06.
(b) In any case in which this Section 4.06 shall require that an adjustment
be made following a record date, a Determination Date or Expiration Date, as the
case may be, established for the purposes specified in this Section 4.06, the
47
8
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section
4.09) issuing to the Holder of any Security converted after such record date,
Determination Date or Expiration Date the shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other Capital Stock of the Company (or other cash,
property or securities, as applicable) issuable upon such conversion only on the
basis of the Conversion Rate prior to adjustment; and, in lieu of any cash,
property or securities the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence prepared by the Company of the right to receive such cash, property or
securities. If any distribution in respect of which an adjustment to the
Conversion Rate is required to be made as of the record date, Determination Date
or Expiration Date therefore is not thereafter made or paid by the Company for
any reason, the Conversion Rate shall be readjusted to the Conversion Rate which
would then be in effect if such record date had not been fixed or such record
date, Determination Date or Expiration Date had not occurred.
(c) For purposes of this Section 4.06, "record date" shall mean, with
respect to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged or converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders entitled to receive
such cash, security or other property (whether or not such date is fixed by the
Board of Directors or by statute, contract or otherwise).
(d) If one or more event occurs requiring an adjustment be made to the
Conversion Rate for a particular period, adjustments to the Conversion Rate
shall be determined by the Company's Board of Directors to reflect the combined
impact of such Conversion Rate adjustment events, as set out in this Section
4.06, during such period.
(e) Notwithstanding the provisions set forth in Section 4.06(a), in no
event shall the total number of shares of Common Stock issuable upon conversion
of a Security exceed 91.9117 per $1,000 principal amount of Securities, subject
to proportional adjustment in the same manner as the Conversion Rate as set
forth in clauses (1) through (4) of Section 4.06(a).
Section 4.07 No Adjustment.
(a) No adjustment in the Conversion Rate shall be required if Holders may
participate in the transactions set forth in Section 4.06 above (to the same
extent as if the Securities had been converted into Common Stock immediately
prior to such transactions) without converting the Securities held by such
Holders.
(b) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Rate as last adjusted; provided, however, that any adjustments which
would be required to be made but for this Section 4.07(b) shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest one-ten
thousandth of a share, as the case may be, with one half cent and 0.00005 of a
share, respectively, being rounded upward.
48
9
(c) No adjustment in the Conversion Rate shall be required for issuances of
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest or for a change in the par value or a change to no par value of the
Common Stock.
(d) To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash.
Section 4.08 [Reserved].
Section 4.09 Notice Of Adjustment.
Whenever the Conversion Rate or conversion privilege is required to be
adjusted pursuant to this Indenture, the Company shall promptly mail to Holders
a notice of the adjustment and file with the Trustee an Officers' Certificate
briefly stating the facts requiring the adjustment and the manner of computing
it. Failure to mail such notice or any defect therein shall not affect the
validity of any such adjustment. Unless and until the Trustee shall receive an
Officers' Certificate setting forth an adjustment of the Conversion Rate, the
Trustee may assume without inquiry that the Conversion Rate has not been
adjusted and that the last Conversion Rate of which it has knowledge remains in
effect.
Section 4.10 Notice Of Certain Transactions.
In the event that there is a dissolution or liquidation of the Company, the
Company shall mail to Holders and file with the Trustee a notice stating the
proposed effective date. The Company shall mail such notice at least 20 days
before such proposed effective date. Failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in this
Section 4.10.
Section 4.11 Effect Of Reclassification, Consolidation, Merger Or Sale On
Conversion Privilege.
(a) If any of the following shall occur, namely: (1) any reclassification
or change of shares of Common Stock issuable upon conversion of the Securities
(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 subdivision or combination or any
other transaction or event for which an adjustment is provided in Section 4.06);
(2) any statutory share exchange, consolidation or merger or combination to
which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than 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 subdivision or combination) in,
outstanding shares of Common Stock; or (3) any sale or conveyance of all or
substantially all the property and assets of the Company, directly or
indirectly, to any person, then the Company and any such successor, purchasing
or transferee corporation, as the case may be, shall, as a condition precedent
to such reclassification, change, combination, statutory share exchange,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture to this Indenture providing that the Holder of each
Security then outstanding shall have the right, subject to this Article 4 and
49
10
unless the Company makes an election under Section 3.08(d) (in which case the
Securities shall be convertible into Public Acquirer Common Stock), to convert
such Security into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such reclassification, change,
combination, statutory share exchange, consolidation, merger, sale or conveyance
by a holder of the number of shares of Common Stock deliverable upon conversion
of such Security immediately prior to such reclassification, change,
combination, statutory share exchange, consolidation, merger, sale or conveyance
(assuming such holder of Common Stock did not exercise any right of election as
to the kind or amount of stock, other securities or other property or assets,
including cash, receivable upon such transaction, and provided that if the kind
or amount of stock, other securities or other property or assets receivable upon
such transaction is not the same for each share of Common Stock in respect of
which such rights of election shall not have been exercised, then the kind and
amount shall be deemed to be the kind and amount receivable per share of Common
Stock by a plurality of the nonelecting shares). Such supplemental indenture
shall provide for adjustments of the Conversion Rate and other appropriate
numerical thresholds which shall be as nearly equivalent as may be practicable
to the adjustments of the Conversion Rate provided for in this Article 4. If, in
the case of any such consolidation, merger, combination, statutory share
exchange, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of Common Stock include shares
of stock or other securities and property of a person other than the successor,
purchasing or transferee corporation, as the case may be, in such consolidation,
merger, combination, statutory share exchange, sale or conveyance, then such
supplemental indenture shall also be executed by such other person and shall
contain such additional provisions to protect the interests of the Holders of
the Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 4.11 shall similarly
apply to successive reclassifications, changes, combinations, consolidations,
mergers, sales or conveyances. If this Section 4.11(a) applies to any event or
occurrence, Section 4.06 shall not apply.
(b) In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the Trustee
(1) an Officers' Certificate briefly stating the reasons therefore, the kind or
amount of shares of stock or other securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, combination, consolidation, merger,
sale or conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (2) an Opinion of Counsel that
all conditions precedent thereto and hereunder have been complied with, and
shall promptly mail notice thereof to all Holders. Failure to mail such notice
or any defect therein shall not affect the validity of such transaction and such
supplemental indenture.
Section 4.12 Trustee's Disclaimer.
(a) The Trustee shall have no duty to determine when an adjustment under
this Article 4 should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness
of any such adjustment, and shall be protected in relying upon, an Officers'
Certificate and Opinion of Counsel, including the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 4.09. The Trustee makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the Company's failure to comply with any
provisions of this Article 4.
50
(b) The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.11.
Section 4.13 Voluntary Increase.
The Company from time to time may increase the Conversion Rate, to the
extent permitted by law, by any amount for any period of time if the period is
at least 20 days, the increase is irrevocable during the period and the Board of
Directors determines that such increase would be in the best interests of the
Company or to avoid or diminish income tax to holders of shares of Common Stock
in connection with a dividend or distribution of stock or similar event, and the
Company provides 15 days' prior written notice of any increase in the Conversion
Rate to the Trustee and the Holders.
Notwithstanding the foregoing paragraph, in no event will the total number
of shares of Common Stock issuable upon conversion of a Security exceed 91.9117
per $1,000 principal amount, subject to proportional adjustment in the same
manner as the Conversion Rate as set forth in clauses (1) through (4) of Section
4.06(a) hereof.
Section 4.14 Payment of Cash in Lieu of Common Stock.
(a) In lieu of delivery of some or all of the shares of Common Stock
otherwise issuable upon notice of conversion of any Securities, Holders
surrendering Securities for conversion shall receive for each $1,000 principal
amount of Securities surrendered: (A) cash in an amount equal to the lesser of
(1) $1,000 and (2) the Conversion Value; and (B) if the Conversion Value is
greater than $1,000, a number of shares of the Company's Common Stock equal to
the sum of the Daily Share Amounts for each of the ten consecutive Trading Days
in the Conversion Reference Period, subject to the Company's right to deliver
cash in lieu of all or a portion of such shares as set forth in Section 4.14(b).
The Company will deliver such cash and any shares of Common Stock, together with
any cash payable for fractional shares, to such Holder in accordance with
Section 4.02(a).
(b) The Company may elect to pay cash to the Holders of Securities
surrendered for conversion in lieu of all or a portion of the Common Stock
otherwise issuable pursuant to Section 4.14(a). In such event, on any day prior
to the first Trading Day of the applicable Conversion Reference Period, the
Company will specify a percentage of the Daily Share Amount that will be settled
in cash (the "Cash Percentage") and the amount of cash that the Company will pay
in respect of each Trading Day in the applicable Conversion Reference Period
will equal the product of: (1) the Cash Percentage, (2) the Daily Share Amount
for such Trading Day and (3) the Closing Price of our Common Stock for such
Trading Day (provided that after the consummation of a Change of Control in
which the consideration is comprised entirely of cash, the amount used in this
51
clause (3) will be the cash price per share received by holders of our Common
Stock in such Change of Control). The number of shares that the Company shall
deliver in respect of each Trading Day in the applicable Conversion Reference
Period will be a percentage of the Daily Share Amount equal to 100% minus the
Cash Percentage. Upon making a determination that a percentage of the Daily
Share Amount will be settled in cash, the Company shall promptly issue a press
release and disclose such information on its website prior to the first Trading
Day of the applicable Conversion Reference Period. If the Company does not
specify a Cash Percentage by the start of the applicable Conversion Reference
Period, the Company shall settle 100% of the Daily Share Amount for each Trading
Day in the applicable Conversion Reference Period with shares of Common Stock;
provided, however, that the Company shall pay cash in lieu of fractional shares
otherwise issuable upon conversion of Securities.
(c) For the purposes of Sections 4.14(a) and (b), in the event that any of
Conversion Value, Daily Share Amounts, or Closing Price is not calculable for
all portions of the Conversion Reference Period, the Company's Board of
Directors shall in good faith determine the values necessary to calculate the
Conversion Value, Daily Share Amounts, and Closing Price, as applicable.
52
ARTICLE 5
COVENANTS
Section 5.01 Payment Of Securities.
(a) The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and this
Indenture. A payment of principal or interest or Liquidated Damages, if any,
shall be considered paid on the date it is due if the Paying Agent (other than
the Company) holds by 10:00 a.m., New York City time, on that date money,
deposited by or on behalf of the Company sufficient to make the payment. Subject
to Section 4.02, accrued and unpaid interest on any Security that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose. Principal, Redemption Price, Put Right
Purchase Price, Change of Control Repurchase Price, and interest and Liquidated
Damages, if any, in each case if payable, shall be considered paid on the
applicable date due if on such date (or, in the case of Put Right Purchase Price
or Change of Control Repurchase Price, on the Business Day following the
applicable Put Right Purchase Date or Change of Control Repurchase Date, as the
case may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all such amounts then due. The Company shall,
to the fullest extent permitted by law, pay interest in immediately available
funds on overdue principal amount and interest at the annual rate borne by the
Securities compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
(b) Payment of the principal of and interest, if any, on the Securities
shall be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York (which shall initially be at
the address set forth in Section 2.03(c)) or at the Corporate Trust Office of
the Trustee 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 check mailed to the address of the Person entitled thereto as such
address appears in the Register; provided further that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire transfer
in immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Trustee at least 10 Business Days
prior to the payment date. Any wire transfer instructions received by the
Trustee will remain in effect until revoked by the Holder.
Section 5.02 SEC and Other Reports.
(a) The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee; provided that any such reports, information and documents filed with
53
13
the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system
shall be deemed to be filed with the Trustee. The Company also shall comply with
the provisions of TIA Section 314(a).
(b) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 5.03 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (beginning with the fiscal year ending December
31, 2005), an Officers' Certificate as to the signer's knowledge of the
Company's compliance with all conditions and covenants on its part contained in
this Indenture and stating whether or not the signer knows of any Default or
Event of Default. If such signer knows of such a Default or Event of Default,
the Officers' Certificate shall describe the Default or Event of Default and the
efforts to remedy the same. For the purposes of this Section 5.03, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
Section 5.04 Further Instruments And Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
Section 5.05 Maintenance Of Corporate Existence.
Subject to Article 6, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
Section 5.06 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, upon the
request of any Holder or beneficial holder of the Securities make available to
such Holder or beneficial holder of Securities or any Common Stock issued upon
conversion thereof which continue to be Restricted Securities in connection with
any sale thereof and any prospective purchaser of Securities or such Common
Stock designated by such Holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act and it will take such
further action as any Holder or beneficial holder of such Securities or such
Common Stock may reasonably request, all to the extent required from time to
time to enable such Holder or beneficial holder to sell its Securities or Common
Stock without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such Rule may be amended from time to time.
Whether a person is a beneficial holder shall be determined by the Company.
54
14
Section 5.07 Stay, Extension And Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of or accrued but unpaid interest or Liquidated Damages, if any,
on the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture, and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.08 Payment Of Liquidated Damages.
If Liquidated Damages are payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee an
Officers' Certificate to that effect stating (i) the amount of such Liquidated
Damages that are payable, (ii) the reason why such Liquidated Damages are
payable and (iii) the date on which such Liquidated Damages are payable. Unless
and until a Trust Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no such Liquidated Damages are payable.
If the Company has paid Liquidated Damages directly to the Persons entitled to
such Liquidated Damages, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.
Section 5.09 Maintenance of Office or Agency.
The Company will maintain an office or agency of the Trustee, Registrar and
Paying Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, purchase or
redemption and where notices and demands to or upon the company in respect of
the Securities and this Indenture may be served. The Corporate Trust Office
shall initially be one such office or agency for all of the aforesaid purposes.
Another such office or agency shall be the one referred to in Section 5.01(b).
The Company shall give prompt written notice to the Trustee of the location, and
of any change in the location, of any such office or agency (other than a change
in the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency.
55
ARTICLE 6
CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE
Section 6.01 Company May Consolidate, Etc., Only On Certain Terms.
(a) The Company may not, without the consent of the Holders, consolidate
with, merge into or transfer or lease all or substantially all of the property
and assets of the Company and its Subsidiaries, taken as a whole, to another
Person unless:
(1) either (A) the Company shall be the resulting or surviving
corporation or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person which
acquires by transfer or lease all or substantially all of the properties
and assets of the Company, shall (i) be a corporation incorporated and
existing under the laws of the United States of America or any State
thereof or the District of Columbia and (ii) expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the obligations of the Company under the
Securities and this Indenture and the performance or observance of every
covenant and provision of this Indenture and the Securities required on the
part of the Company to be performed or observed and the conversion rights
shall be provided for in accordance with Article 4, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the Person (if other than the Company) formed by such
consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company's assets;
(2) after giving effect to such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing; and
(3) if the Company will not be the resulting or surviving corporation,
the Company shall have, at or prior to the effective date of such
consolidation, merger or transfer, delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Article and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture complies with this Article, and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Subsidiaries of the
Company (other than to the Company or another Subsidiary of the Company), which,
if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a
whole, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
56
15
Section 6.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a
whole, in accordance with Section 6.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, and except for obligations the
predecessor Person may have under a supplemental indenture, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities.
57
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01 Events Of Default.
(a) An "Event of Default" shall occur if:
(1) the Company shall fail to pay when due the Principal or any
Redemption Price, Put Right Purchase Price or Change of Control Repurchase
Price of any Security, including any Make-Whole Premium, when the same
becomes due and payable whether at the Final Maturity Date, upon
redemption, repurchase, acceleration or otherwise; or
(2) the Company shall fail to pay an installment of cash interest or
Liquidated Damages, if any, on any of the Securities, which failure
continues for 30 days after the date when due; or
(3) the Company shall fail to deliver when due all cash and shares of
Common Stock deliverable upon conversion of the Securities, which failure
continues for 15 days; or
(4) the Company shall fail to perform or observe any other term,
covenant or agreement contained in the Securities or this Indenture for a
period of 30 days after receipt by the Company of a Notice of Default
specifying such failure; or
(5) default in the payment of principal when due or resulting in
acceleration of other Indebtedness of the Company for borrowed money where
the aggregate principal amount with respect to which the default or
acceleration has occurred exceeds $5 million and such acceleration has not
been rescinded or annulled or such Indebtedness repaid within a period of
30 days after receipt of a Notice of Default, provided that if any such
default is cure, waived, rescinded or annulled, then the Event of Default
by reason thereof would be deemed not to have occurred; or
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences as a debtor a voluntary case or proceeding; or
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;
(C) consents to the appointment of a Receiver of it or for all or
substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
58
16
(F) consents to the filing of such a petition or the appointment
of or taking possession by a Receiver; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) grants relief against the Company in an involuntary case or
proceeding or adjudicates the Company insolvent or bankrupt;
(B) appoints a Receiver of the Company or for all or
substantially all of the property of the Company; or
(C) orders the winding up or liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or any
successor thereto) or any similar federal or state law for the relief of
debtors. The term "Receiver" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
(b) Notwithstanding Section 7.01(a) no Event of Default under clauses (4)
or (5) of Section 7.01(a) shall occur until the Trustee notifies the Company in
writing, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee in writing, of
the Default (a "Notice of Default"), and the Company does not cure the Default
within the time specified in clause (4) or (5) of Section 7.01(a), as
applicable, after receipt of such notice. A notice given pursuant to this
Section 7.01 shall be given by registered or certified mail, must specify the
Default, demand that it be remedied and state that the notice is a Notice of
Default. When any Default under this Section 7.01 is cured, it ceases.
(c) The Company will deliver to the Trustee, within 5 Business Days after
becoming aware of the occurrence of a Default or Event of Default, written
notice thereof.
The Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Trust Officer with
responsibility for this Indenture at the Corporate Trust Office of the Trustee
by the Company, a Paying Agent, any Holder or any agent of any Holder or unless
a Trust Officer with responsibility for this Indenture acquires actual knowledge
of such Event of Default in the course of performing other duties pursuant to
this Indenture.
Section 7.02 Acceleration.
If an Event of Default (other than an Event of Default specified in clause
(6) or (7) of Section 7.01(a)) occurs and is continuing with respect to the
Company, the Trustee may, by notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Securities then outstanding may, by
notice to the Company and the Trustee, declare the principal amount and accrued
and unpaid interest, if any, and accrued and unpaid Liquidated Damages, if any,
59
17
through the date of declaration on all the Securities to be immediately due and
payable. Upon such a declaration, such principal amount and such accrued and
unpaid interest, if any, and such accrued and unpaid Liquidated Damages, if any,
shall be due and payable immediately. If an Event of Default specified in
Section 7.01(a)(6) or (7) occurs in respect of the Company and is continuing,
the principal amount and accrued but unpaid interest, if any, and accrued and
unpaid Liquidated Damages, if any, on all the Securities shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders of Securities. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee may
rescind an acceleration and its consequences if (a) all existing Events of
Default, other than the nonpayment of the principal of the Securities which have
become due solely by such declaration of acceleration, have been cured or
waived; (b) to the extent the payment of such interest is lawful, interest
(calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 8.07 have been made. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
Section 7.03 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect payment of the principal amount and accrued and unpaid
interest, if any, and accrued and unpaid Liquidated Damages, if any, on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
applicable law.
Section 7.04 Waiver Of Defaults And Events Of Default.
Subject to Sections 7.07 and 10.02, the Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except an
uncured Default or Event of Default in the payment of the principal of, premium,
if any, or any accrued but unpaid interest on any Security, an uncured failure
by the Company to convert any Securities into Common Stock or any Default or
Event of Default in respect of any provision of this Indenture or the Securities
which, under Section 10.02, cannot be modified or amended without the consent of
the Holder of each Security affected. When a Default or Event of Default is
waived, it is cured and ceases.
Section 7.05 Control By Majority.
The Holders of a majority in aggregate principal amount of the Securities
then outstanding may direct the time method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
60
18
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Holder or the Trustee, or that may
involve the Trustee in personal liability unless the Trustee is offered security
or indemnity satisfactory to it; provided, however, that the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
Section 7.06 Limitations On Suits.
(a) A Holder may not pursue any remedy with respect to this Indenture or
the Securities (except actions for payment of overdue principal, premium, if
any, or interest or for the conversion of the Securities pursuant to Article 4)
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Securities then outstanding.
(b) No Holder of a Security shall have any right under any provision of
this Indenture or the Securities to affect, disturb, or prejudice the rights of
another Holder of a Security or to obtain a preference or priority over another
Holder of a Security.
Section 7.07 Rights Of Holders To Receive Payment And To Convert.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of the principal amount, Redemption
Price, Put Right Purchase Price, Change of Control Repurchase Price, or
Make-Whole Premium and interest, if any or Liquidated Damages, if any, in
respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities and this Indenture, (whether upon redemption,
repurchase, or otherwise), and to convert such Security in accordance with
Article 4, and to bring suit for the enforcement of any such payment on or after
such respective due dates or for the right to convert in accordance with Article
4, is absolute and unconditional and shall not be impaired or affected without
the consent of the Holder.
61
19
Section 7.08 Collection Suit By Trustee.
If an Event of Default described in clause (1) or (2) of Section 7.01(a)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount owing with respect to the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 7.09 Trustee May File Proofs Of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same, and any Receiver in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07, and to the extent that such payment of the reasonable
compensation, expenses, disbursements and advances in any such proceedings shall
be denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other property which the Holders may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to, or, on behalf of any Holder, to
authorize, accept or adopt any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 7.10 Priorities.
(a) If the Trustee collects any money pursuant to this Article 7, it shall
pay out the money in the following order:
(1) First, to the Trustee for amounts due under Section 8.07;
(2) Second, to Holders for amounts due and unpaid on the Securities
for the principal amount, interest, and Liquidated Damages, as applicable,
ratably, without preference or priority of any kind, according to such
respective amounts due and payable on the Holders' Securities;
(3) Third, to such other Person or Persons, if any, to the extent
entitled thereto; and
(4) Fourth, the balance, if any, to the Company.
62
20
(b) The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 7.10.
Section 7.11 Undertaking For Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 7.11 does not apply to a suit made by the Trustee, a suit by a Holder
pursuant to Section 7.07, or a suit by Holders of more than 10% in aggregate
principal amount of the Securities then outstanding. This Section 7.11 shall be
in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
63
ARTICLE 8
TRUSTEE
Section 8.01 Obligations Of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are specifically set
forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine any certificates and opinions which by any
provision hereof are specifically required to be delivered to the Trustee
to determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.
This Section 8.01(b) shall be in lieu of Section 315(a) of the TIA and
such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own gross
negligent action, its own gross negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section 8.01(b);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
grossly negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 7.05.
This Section 8.01(c) shall be in lieu of Sections 315(d)(1), 315(d)(2)
and 315(d)(3) of the TIA and such Sections are hereby expressly excluded
from this Indenture as permitted by the TIA.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
64
21
unless the Trustee shall have received adequate security or indemnity in its
opinion against potential costs and liabilities incurred by it relating thereto.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to subsections (a), (b), (c) and (d) of this Section 8.01.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 8.02 Rights Of Trustee.
(a) Subject to Section 8.01:
(1) The Trustee may rely conclusively on any document believed by it
to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 11.04(b). The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officers' Certificate or
Opinion.
(3) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(7) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
65
22
Company, personally or by agent or attorney at the sole cost of the
Company, and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation.
(8) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office, and such
notice references the Securities and this Indenture.
(9) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, including, without limitation as Paying Agent,
Registrar and Conversion Agent, and to each agent, custodian and other
Person employed to act hereunder.
Section 8.03 Individual Rights Of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate of
the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
8.10 and 8.11.
Section 8.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. It shall not be accountable for the Company's use
of the proceeds from the Securities and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
Section 8.05 Notice Of Default Or Events Of Default.
If a Default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Holder of a Security notice
of all uncured Defaults or Events of Default known to it within 90 days after it
occurs or, if later, within 15 days after it becomes known to the Trustee.
However, the Trustee may withhold the notice if and for so long as a committee
of its Trust Officers in good faith determines that withholding notice is in the
interests of Holders of Securities, except in the case of a Default or an Event
of Default in payment of the principal of, or premium, if any, or interest on
any Security when due or in the payment of any redemption or purchase
obligation, or the Company's failure to convert Securities when obligated to
convert them. This Section 8.05 is in lieu of section 315(b) of the TIA and such
provision is expressly excluded from this Indenture as permitted by the TIA.
Section 8.06 Reports By Trustee To Holders.
(a) If a report is required by TIA Section 313, within 60 days after each
May 15, beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder of Securities a brief report dated as of such
May 15 that complies with TIA Section 313(a). If required by TIA Section 313,
the Trustee also shall comply with TIA Sections 313(b)(2) and (c).
66
23
(b) A copy of each report at the time of its mailing to Holders of
Securities shall be mailed to the Company and, to the extent required by the
TIA, filed with the SEC, and each stock exchange, if any, on which the
Securities are listed. The Company shall notify the Trustee whenever the
Securities become listed on any stock exchange or listed or admitted to trading
on any quotation system and any changes in the stock exchanges or quotation
systems on which the Securities are listed or admitted to trading and of any
delisting thereof.
Section 8.07 Compensation And Indemnity.
(a) The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses may
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee or any predecessor Trustee
(which for purposes of this Section 8.07 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability or expense including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), incurred by it in connection with
the acceptance or administration of its duties under this Indenture or any
action or failure to act as authorized or within the discretion or rights or
powers conferred upon the Trustee hereunder including the reasonable costs and
expenses of the Trustee and its counsel in defending (including reasonable legal
fees and expenses) itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company need not pay for any settlement
effected without its prior written consent, which shall not be unreasonably
withheld.
(c) The Company need not reimburse the Trustee for any expense or indemnify
it against any loss or liability incurred by it resulting from its gross
negligence, willful misconduct or bad faith.
(d) To secure the Company's payment obligations in this Section 8.07, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee. The
obligations of the Company under this Section 8.07 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Trustee.
(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (7) or (8) of Section 7.01(a) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture.
67
Section 8.08 Replacement Of Trustee.
(a) The Trustee may resign by so notifying the Company. The Holders of a
majority in aggregate principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and the Company and may, with the
Company's written consent, appoint a successor Trustee. The Company may remove
the Trustee at any time, so long as no Default or Event of Default has occurred
and is continuing, and appoint a Successor Trustee in accordance with this
Section 8.08.
(b) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
(c) If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Company.
(d) If the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
(f) A retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee after its succession.
(g) Notwithstanding replacement of the Trustee pursuant to this Section
8.08, the Company's obligations under Section 8.07 shall continue for the
benefit of the retiring Trustee.
Section 8.09 Successor Trustee By Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee; provided such transferee corporation shall qualify and be
eligible under Section 8.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.
68
25
Section 8.10 Eligibility; Disqualification.
The Trustee shall always satisfy the requirements of paragraphs (1), (2)
and (5) of TIA Section 310(a). The Trustee (or its parent holding company) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. If at any time the Trustee
shall cease to satisfy any such requirements, it shall resign immediately in the
manner and with the effect specified in this Article 8. The Trustee shall be
subject to the provisions of TIA Section 310(b). Nothing herein shall prevent
the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
Section 8.11 Preferential Collection Of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
69
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Satisfaction And Discharge Of Indenture.
(a) This Indenture shall cease to be of further force and effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when either:
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07 and (ii) Securities for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company as provided in Section 9.03) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable,
(ii) will become due and payable at the Final Maturity Date
within one year, or
(iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company;
provided in the case of clause (B), that
(1) the Company has deposited with the Trustee or a Paying Agent
(other than the Company or any of its Affiliates) as trust funds in trust
for the purpose of and in an amount sufficient to pay and discharge the
entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Final Maturity Date or Redemption Date, as the case may be. In the
event that the Company exercises its right to redeem the Securities as
provided in Article 3, the Company shall have the right to withdraw its
funds previously deposited with the Trustee or Paying Agent pursuant to the
immediately preceding sentence;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
70
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein relating to the satisfaction and discharge of this Indenture have
been complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company with respect to the conversion privilege and the
Conversion Rate of the Securities pursuant to Article 4, the obligations of the
Company to the Trustee under Section 8.07 and, if money shall have been
deposited with the Trustee pursuant to clause (2) of Section 9.01(a), the
provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 5.01 and 12.05,
Article 4, and this Article 9, shall survive until the Securities have been paid
in full.
Section 9.02 Application Of Trust Money.
Subject to the provisions of Section 9.03, the Trustee or a Paying Agent
shall hold in trust, for the benefit of the Holders, all money deposited with it
pursuant to Section 9.01 and shall apply the deposited money in accordance with
this Indenture and the Securities to the payment of the principal of and
interest on the Securities.
Section 9.03 Repayment To Company.
(a) The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (1) deposited with them pursuant to Section 9.01
and (2) held by them at any time.
(b) The Trustee and each Paying Agent shall, subject to applicable
abandonment property laws, pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years after a right to such money has matured; provided, however, that the
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Company cause to be mailed to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
Section 9.04 Reinstatement.
(a) If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 9.02 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.01 until such
time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 9.02; provided, however, that if the Company has made
any payment of the principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive any such payment from the money
held by the Trustee or such Paying Agent.
71
(b) If pursuant to the last sentence of Section 9.01(a)(2), the Company
withdraws its previously deposited funds as a result of its exercise of its
redemption right, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit has occurred
pursuant to Section 9.01.
72
ARTICLE 10
AMENDMENTS; SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent Of Holders.
(a) The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder of a Security for the
purpose of:
(1) evidencing a successor to the Company and the assumption by that
successor of the Company's obligations under this Indenture and the
Securities;
(2) adding to the Company's covenants for the benefit of the Holders
or surrendering any right or power conferred upon the Company;
(3) securing the Company's obligations in respect of the Securities;
(4) adding a guarantor of the Securities;
(5) evidencing and providing for the acceptance of the appointment of
a successor trustee in accordance with Article 8;
(6) complying with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA, as contemplated
by this Indenture or otherwise;
(7) providing for conversion rights of Holders if any reclassification
or change of Common Stock or any consolidation, merger or sale of all or
substantially all of the Company's property and assets occurs or otherwise
complying with the provisions of this Indenture in the event of a merger,
consolidation or transfer of assets (including the provisions of Section
4.11 and Article 6);
(8) increasing the Conversion Rate, provided that the increase will
not adversely affect the interests of Holders;
(9) curing any ambiguity, omission, inconsistency or correcting or
supplementing any defective provision contained in this Indenture; or
(10) modifying any other provisions of this Indenture in any manner
that will not adversely affect the interests of the Holders in any material
respect.
(b) The Company may, without consent of any Holder of a Security or the
Trustee, amend this Indenture for the purpose of surrendering the Company's
right to issue shares of Common Stock upon conversion of the Securities.
73
Section 10.02 With Consent Of Holders.
(a) The Company and the Trustee may amend or supplement this Indenture or
the Securities with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding or by the adoption
of a resolution at a meeting of Holders by at least a majority in aggregate
principal amount of the Securities represented at the meeting. However, subject
to Section 10.04, without the written consent of each Holder affected, an
amendment, supplement or waiver may not:
(1) alter the manner of calculation or rate of accrual of interest on
any Security or change the time of payment of any installment of interest
on, or any Liquidated Damages with respect to, any Security;
(2) make any of the Securities payable in money or securities other
than that stated in the Securities;
(3) change the stated maturity of any Security;
(4) reduce the principal amount, Redemption Price, Put Right Purchase
Price, or Change of Control Repurchase Price (as applicable) with respect
to any of the Securities, or any Liquidated Damages, or the amount payable
upon redemption or purchase pursuant to Article 3, with respect to any
Security;
(5) make any change that adversely affects the rights of a Holder to
convert any of the Securities in any material respect;
(6) make any change that adversely affects the rights of Holders to
require the Company to purchase Securities at the option of Holders in any
material respect;
(7) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security or with respect to the
conversion of any Security; or
(8) reduce the percentage in aggregate principal amount of Securities
outstanding necessary to modify or amend this Indenture or to waive any
past Default.
(b) Without limiting the provisions of Section 10.02(a) hereof, the Holders
of a majority in principal amount of the Securities then outstanding may, on
behalf of all the Holders of all Securities, (i) waive compliance by the Company
with the restrictive provisions of this Indenture, and (ii) waive any past
Default of Event of Default under this Indenture and its consequences, except an
uncured failure to pay when due the principal amount, accrued and unpaid
interest, accrued and unpaid Liquidated Damages, Redemption Price, Put Right
Purchase Price or Change of Control Repurchase Price, if any and as applicable,
or in respect of any provision which under this Indenture cannot be modified or
amended without the consent of the Holder of each outstanding Security affected.
(c) After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall promptly mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
74
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
Section 10.03 Compliance With Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as in effect at the date of such amendment or supplement.
Section 10.04 Revocation And Effect Of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective.
(b) After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of a Security, unless it makes a change described in any of
clauses (1) through (9) of Section 10.02(a). In the case of an amendment,
supplement, or waiver that makes a change described in any of clauses (1)
through (9) of Section 10.02(a), the amendment, supplement or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security.
Section 10.05 Notation On Or Exchange Of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 10.06 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 10 if the amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, in its sole discretion, but need not sign it. In
signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 8.01, shall be
fully protected in relying upon, an Opinion of Counsel stating that such
amendment or supplemental indenture is authorized or permitted by this
Indenture. The Company may not sign an amendment or supplement indenture until
the Board of Directors approves it.
75
Section 10.07 Effect Of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 10,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
76
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall control.
Section 11.02 Notices.
Any demand, authorization notice, request, consent or communication shall
be given in writing and delivered in person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by delivery in person or mail by first-class mail, postage prepaid,
or by guaranteed overnight courier) to the following facsimile numbers:
If to the Company, to:
Pinnacle Airlines Corp.
0000 Xxxxxxxxx Xxxx. Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile No: (000) 000-0000
Telephone No: (000) 000-0000
if to the Trustee, to:
Deutsche Bank National Trust Company
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxxx 00000
Attention: Trust & Securities Services
Telephone No: 000-000-0000
Facsimile No: 000-000-0000
Such notices or communications shall be effective when received.
77
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of a Security shall be
mailed by first-class mail or delivered by an overnight delivery service to it
at its address shown on the register kept by the Primary Registrar.
Failure to mail a notice or communication to a Holder of a Security or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities. If a notice or communication to a Holder of a Security is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
If the Company mails any notice to a Holder of a Security, it shall mail a
copy to the Trustee and each Registrar, Paying Agent and Conversion Agent.
Section 11.03 Communications By Holders With Other Holders.
Holders of Securities may communicate pursuant to TIA Section 312(b) with
other Holders of Securities with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other person
shall have the protection of TIA Section 312(c).
Section 11.04 Certificate And Opinion As To Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants, compliance with
which constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants, compliance
with which constitutes a condition precedent) have been complied with.
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
78
(3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
Section 11.05 Record Date For Vote Or Consent Of Holders of
Securities.
The Company (or, in the event deposits have been made pursuant to Section
9.01, the Trustee) may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall not be
more than 30 days prior to the date of the commencement of solicitation of such
action. Notwithstanding the provisions of Section 10.04, if a record date is
fixed, those persons who were Holders of Securities at the close of business on
such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
Section 11.06 Rules By Trustee, Paying Agent, Registrar And Conversion
Agent.
The Trustee may make reasonable rules (not inconsistent with the terms of
this Indenture) for action by or at a meeting of Holders. Any Registrar, Paying
Agent or Conversion Agent may make reasonable rules for its functions.
Section 11.07 Legal Holidays.
A "Legal Holiday" is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York are authorized or
obligated to close. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a Regular Record Date is a Legal Holiday,
the record date shall not be affected.
Section 11.08 Governing Law.
This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 11.09 No Adverse Interpretation Of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
79
Section 11.10 No Recourse Against Others.
All liability described in paragraph 17 of the Securities of any director,
officer, employee or shareholder, as such, of the Company hereby is waived and
released by each of the Holders.
Section 11.11 No Security Interest Created.
Nothing in this Indenture or in the Securities, express or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, now in effect or hereafter enacted and made effective,
in any jurisdiction.
Section 11.12 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 11.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.
Section 11.14 Separability.
If any provisions in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.15 Table Of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this 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.
[SIGNATURE PAGE FOLLOWS]
80
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the date and year first above written.
PINNACLE AIRLINES CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.1
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.2
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH PINNACLE AIRLINES CORP. OR
------------------------
1 This paragraph should be included only if the Security is a Global Security.
2 These paragraphs to be included only if the Security is a Restricted Security.
A-1
ANY AFFILIATE OF PINNACLE AIRLINES CORP. WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO PINNACLE AIRLINES CORP. OR ANY PARENT
OR SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH IS EFFECTIVE UNDER THE
SECURITIES ACT AT THE TIME OF SUCH OFFER, TRANSFER OR SALE, OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO PINNACLE AIRLINES CORP.'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.2
A-2
PINNACLE AIRLINES CORP.
3.25% Senior Convertible Notes due 2025
No. A1 CUSIP: [________]
-----------------------
Pinnacle Airlines Corp., a Delaware corporation, promises to pay to Cede &
Co. or registered assigns the principal amount of One Hundred and Ten Million
Dollars ($110,000,000.00) on February 15, 2025.
This Security shall bear interest as specified on the other side of this
Security. This Security is convertible as specified on the other side of this
Security.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: February 8, 2005
SIGNATURE PAGE FOLLOWS
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PINNACLE AIRLINES CORP.
By:
----------------------------------
Name:
Title:
Dated:
Trustee's Certificate of Authentication: This is one of the
Securities referred to in the within-mentioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
-------------------------------
Authorized Signatory
A-4
[FORM OF REVERSE SIDE OF SECURITY]
PINNACLE AIRLINES CORP.
SENIOR CONVERTIBLE NOTES DUE 2025
1. INTEREST
Pinnacle Airlines Corp., a Delaware corporation (the "Company", which term
shall include any successor corporation under the Indenture hereinafter referred
to), promises to pay interest on the principal amount of this Security at the
rate of 3.25% per annum. The Company shall pay interest semiannually on February
15 and August 15 of each year (each an "Interest Payment Date"), commencing
August 15, 2005. Each payment of interest will include interest accrued through
the day before the relevant Interest Payment Date (or purchase or redemption
date, as the case may be). Cash interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. Any reference herein to interest
accrued or payable as of any date shall include any Liquidated Damages accrued
or payable on such date as provided in the Registration Rights Agreement.
No sinking fund is provided for the Securities.
2. METHOD OF PAYMENT
The Company shall pay interest on this Security (except defaulted interest)
to the person who is the Holder of this Security at the close of business on
February 1 or August 1, as the case may be, (each, a "Regular Record Date") next
preceding the related Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Company may pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; provided, however, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Trustee at least 10 Business Days
prior to the Payment Date. The Company may mail an interest check to the
Holder's registered address. Notwithstanding the foregoing, so long as this
Security is registered in the name of a Depositary or its nominee, all payments
hereon shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
Any wire transfer instructions received by the Trustee will remain in
effect until revoked by the Holder.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, Deustche Bank National Trust Company (the "Trustee", which term
shall include any successor trustee under the Indenture hereinafter referred to)
will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice to the Holder.
The Company or any of its Subsidiaries may, subject to certain limitations set
forth in the Indenture, act as Paying Agent or Registrar.
A-5
4. INDENTURE, LIMITATIONS
This Security is one of a duly authorized issue of Securities of the
Company designated as its 3.25% Senior Convertible Notes Due 2025 (the
"Securities"), issued under an Indenture dated as of February 8, 2005 (together
with any supplemental indentures thereto, the "Indenture"), between the Company
and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended, as in effect on the date of the
Indenture. This Security is subject to all such terms, and the Holder of this
Security is referred to the Indenture and said Act for a statement of them.
The Securities are senior unsecured obligations of the Company limited to
$121,000,000 aggregate principal amount. The Indenture does not limit other debt
of the Company, secured or unsecured.
5. REDEMPTION AT THE OPTION OF THE COMPANY
Prior to February 15, 2010, the Securities shall not be redeemable. On or
after February 15, 2010, the Company may, at its option, redeem the Securities
for cash, as a whole at any time or from time to time in part at a Redemption
Price of 100% of the principal amount of the Securities plus accrued and unpaid
cash interest, if any, and Liquidated Damages, if any, up to but not including
the applicable Redemption Date (the "Redemption Price"); provided that if the
Redemption Date falls after a Regular Record Date and on or before the related
Interest Payment Date, then interest on the Securities payable on such Interest
Payment Date will instead be payable to the Holders in whose names the
Securities are registered at the close of business on such Regular Record Date.
Securities or portions of Securities called for redemption shall be convertible
by the Holder until the close of business on the Business Day prior to the
relevant Redemption Date.
6. NOTICE OF REDEMPTION
Notice of redemption, as set forth in Section 3.03 of the Indenture, will
be mailed by first-class mail at least 30 days but not more than 60 days before
a Redemption Date to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 may be redeemed in part,
but only in whole multiples of $1,000. On and after the Redemption Date, subject
to the deposit with the Paying Agent of funds sufficient to pay the Redemption
Price, such Securities or portions of them called for redemption will cease to
be outstanding, whether or not the Security is delivered to the Paying Agent,
and the rights of the Holder in respect thereof shall cease (other than the
right to receive the Redemption Price).
7. PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE OF CONTROL
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase for cash, subject to
certain exceptions described in the Indenture all or any part specified by the
Holder (so long as the principal amount of such part is $1,000 or an integral
multiple of $1,000) of the Securities held by such Holder on a date specified by
the Company that is no more than 30 Business Days after the date that a Change
A-6
of Control Company Notice is delivered, at a purchase price equal to 100% of the
principal amount thereof together with accrued and unpaid interest, if any, and
accrued and unpaid Liquidated Damages, if any, to, but excluding, the Change of
Control Repurchase Date. The Holder shall have the right to withdraw any Change
of Control Repurchase Notice (in whole or in a portion thereof that is $1,000 or
an integral multiple of $1,000) at any time prior to the close of business on
the Business Day next preceding the Change of Control Repurchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with
the terms of the Indenture.
8. PURCHASE OF SECURITIES AT OPTION OF HOLDER ON SPECIFIED DATES
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase for cash all or any
part specified by the Holder (so long as the principal amount of such part is
$1,000 or an integral multiple of $1,000) of the Securities held by such Holder
on the applicable Put Right Purchase Date at the applicable Put Right Purchase
Price. The Holder shall have the right to withdraw any Put Right Purchase Notice
(in whole or in a portion thereof that is $1,000 or an integral multiple of
$1,000) at any time prior to the close of business on the Business Day next
preceding the Put Right Purchase Date by delivering a written notice of
withdrawal to the Paying Agent in accordance with the terms of the Indenture.
9. CONVERSION
Subject to and upon compliance with the provisions of the Indenture and
upon the occurrence of the events specified in the Indenture, a Holder may
surrender for conversion any Security that is $1,000 principal amount or
integral multiples thereof. In lieu of receiving shares of the Company's Common
Stock, a Holder will receive, for each $1,000 principal amount of Securities
surrendered for conversion:
- cash in an amount equal to the lesser of (1) $,1000 and (2) the
Conversion Value, as defined in the Indenture; and
- if the Conversion Value is greater than $1,000, a number of shares of
the Company's Common Stock, equal to the sum of the Daily Share
Amounts, as defined in the Indenture, for each of the ten consecutive
Trading Days in the Conversion Reference Period, as defined in the
Indenture, subject to the Company's right to deliver cash in lieu of
all or a portion of such shares as described in the Indenture.
10. DENOMINATIONS, TRANSFER, EXCHANGE
The Securities are in registered form, without coupons, in denominations of
$1,000 principal amount and integral multiples of $1,000 principal amount. A
Holder may register the transfer of or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental charges that may be imposed in relation thereto by law or
permitted by the Indenture.
A-7
11. PERSONS DEEMED OWNERS
The Holder of a Security may be treated as the owner of it for all
purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee and any Paying Agent will pay the money back to the Company
at its written request, subject to applicable unclaimed property law and the
provisions of the Indenture. After that, Holders entitled to money must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
13. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities then outstanding, and an
existing Default or Event of Default and its consequence or compliance with any
provision of the Indenture or the Securities may be waived in a particular
instance with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without the consent of or notice to
any Holder, the Company and the Trustee may amend or supplement the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of the Holders in any material respect. The Company may also amend the
Indenture, without consent of the Holders or the Trustee, for the purpose of
surrendering the Company's right to issue shares of Common Stock upon conversion
of the Securities.
14. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its predecessor
under the Securities and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation (except in certain
circumstances specified in the Indenture) shall be released from those
obligations.
15. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default shall occur if:
(1) the Company shall fail to pay when due the Principal or any Redemption
Price, Put Right Purchase Price or Change of Control Repurchase Price of
any Security, including any Make-Whole Premium, when the same becomes due
and payable whether at the Final Maturity Date, upon redemption,
repurchase, acceleration or otherwise; or
(2) the Company shall fail to pay an installment of cash interest or
Liquidated Damages, if any, on any of the Securities, which failure
continues for 30 days after the date when due; or
(3) the Company shall fail to deliver when due all cash and shares of
Common Stock deliverable upon conversion of the Securities, which failure
continues for 15 days; or
A-8
(4) the Company shall fail to perform or observe any other term, covenant
or agreement contained in the Securities or the Indenture for a period of
30 days after receipt by the Company of a Notice of Default specifying such
failure; or
(5) default in the payment of principal when due or resulting in
acceleration of other Indebtedness of the Company for borrowed money where
the aggregate principal amount with respect to which the default or
acceleration has occurred exceeds $5 million and such acceleration has not
been rescinded or annulled or such Indebtedness repaid within a period of
30 days after receipt of a Notice of Default, provided that if any such
default is cure, waived, rescinded or annulled, then the Event of Default
by reason thereof would be deemed not to have occurred; or
(6) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences as a debtor a voluntary case or proceeding; or
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against it;
(C) consents to the appointment of a Receiver of it or for all or
substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such a petition or the appointment of or
taking possession by a Receiver; or
(7) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) grants relief against the Company in an involuntary case or
proceeding or adjudicates the Company insolvent or bankrupt;
(B) appoints a Receiver of the Company or for all or substantially all
of the property of the Company; or
(C) orders the winding up or liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or any
successor thereto) or any similar federal or state law for the relief of
debtors. The term "Receiver" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
A-9
Notwithstanding the above, no Event of Default under clauses (4) or (5)
above shall occur until the Trustee notifies the Company in writing, or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding notify the Company and the Trustee in writing, of the Default (a
"Notice of Default"), and the Company does not cure the Default within the time
specified in clause (4) or (5), as applicable, after receipt of such notice.
If an Event of Default (other than an Event of Default specified in clause
(6) or (7) above) occurs and is continuing with respect to the Company, the
Trustee may, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding may, by notice to
the Company and the Trustee, declare the principal amount and accrued and unpaid
interest, if any, and accrued and unpaid Liquidated Damages, if any, through the
date of declaration on all the Securities to be immediately due and payable.
Upon such a declaration, such principal amount and such accrued and unpaid
interest, if any, and such accrued and unpaid Liquidated Damages, if any, shall
be due and payable immediately. If an Event of Default specified in clauses (6)
or (7) occurs in respect of the Company and is continuing, the principal amount
and accrued but unpaid interest, if any, and accrued and unpaid Liquidated
Damages, if any, on all the Securities shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders of Securities. The Holders of a majority in aggregate principal amount
of the Securities then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (a) all existing Events of Default, other
than the nonpayment of the principal of the Securities which have become due
solely by such declaration of acceleration, have been cured or waived; (b) to
the extent the payment of such interest is lawful, interest (calculated at the
rate per annum borne by the Securities) on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction; and (d) all payments
due to the Trustee and any predecessor Trustee under the Indenture have been
made. No such rescission shall affect any subsequent Default or impair any right
consequent thereto. Holders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
Default (except a Default in payment of principal or interest) if and so long as
it determines that withholding notice is in their interests. The Company is
required to file periodic certificates with the Trustee as to the Company's
compliance with the Indenture and knowledge or status of any Default.
16. TRUSTEE DEALINGS WITH THE COMPANY
Deutsche Bank National Trust Company, the initial Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from and perform services for the Company or an Affiliate of the
Company, and may otherwise deal with the Company or an Affiliate of the Company,
as if it were not the Trustee.
A-10
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Security by accepting this
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of this Security.
18. AUTHENTICATION
This Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
19. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
20. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Security and the
Indenture, the provisions of the Indenture shall control. This Security and the
Indenture shall be governed by, and construed in accordance with, the laws of
the State of New York.
The Company will furnish to any Holder, upon written request and without
charge, a copy of the Indenture. Requests may be made to: Pinnacle Airlines
Corp., 0000 Xxxxxxxxx Xxxx. Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, Attention:
Chief Financial Officer, Facsimile No.: (000) 000-0000, Telephone No.: (800)
000-0000.
A-11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date: _____________________________ ______________________________
(Sign exactly as your name appears on
the other side of this Security)
*Signature guaranteed by:
By: ______________________________
---------------------------
*The signature must be guaranteed by an institution which is a member of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
A-12
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
--
To convert only part of this Security, state the principal amount to be
converted (must be $1,000 or a integral multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name, fill
in the form below:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date: _____________________________ ______________________________
(Sign exactly as your name appears on
the other side of this Security)
*Signature guaranteed by:
By: ______________________________
--------------------
*The signature must be guaranteed by an institution which is a member of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
A-13
CHANGE OF CONTROL REPURCHASE NOTICE
To: Pinnacle Airlines Corp.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Pinnacle Airlines Corp. (the "Company") as
to the occurrence of a Change of Control with respect to the Company and
requests and instructs the Company to purchase the entire principal amount of
this Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Change of Control Repurchase Price, together
with accrued and unpaid interest and Liquidated Damages, if any, to, but
excluding, such date, to the registered Holder hereof.
Dated: ____________ ______________________________
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange
Act of 1934.
------------------------------
Signature Guaranty
Principal amount to be redeemed (in an
integral multiple of $1,000, if less than all):
------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without any
alteration or change whatsoever.
A-14
OPTION TO ELECT PURCHASE
ON SPECIFIED DATES
To: Pinnacle Airlines Corp.
The undersigned hereby requests and instructs Pinnacle Airlines Corp. to
purchase the entire principal amount of this Security, or the portion thereof
(which is $1,000 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 Purchase Price for the next occurring Put Right
Purchase Date to the registered Holder hereof.
Dated: ____________ ______________________________
______________________________
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange
Act of 1934.
_______________________________
Signature Guaranty
Principal amount to be redeemed (in an
integral multiple of $1,000, if less than all):
------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without any
alteration or change whatsoever.
A-15
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges, purchase, redemptions, purchases or conversions of
a part of this Global Security have been made:
Principal Amount of
this Global Note
Following Such
Decrease Date of Authorized Amount of Decrease Amount of Increase
Exchange (or Signatory of in Principal Amount in Principal Amount
Increase) Securities Custodian of this Global Note of this Global Note
------------------- -------------------- ------------------- -------------------
A-16
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF RESTRICTED SECURITIES
Re: 3.25% Senior Convertible Notes Due 2025 (the "Securities") of Pinnacle
Airlines Corp.
This certificate relates to $_____ principal amount of Securities owned in
(check applicable box)
___book-entry or ___definitive form by ___________________ (the "Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Section 2.12 of the
Indenture dated as of February 8, 2005 between Pinnacle Airlines Corp. and
Deustche Bank National Trust Company, as trustee (the "Indenture"), and the
transfer of such Security is being made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act")
(check applicable box) or the transfer or exchange, as the case may be, of such
Security does not require registration under the Securities Act because (check
applicable box):
___ Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
___ Such Security is being acquired for the Transferor's own account,
without transfer.
___ Such Security is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
___ Such Security is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A or any successor provision thereto ("Rule 144A") under
the Securities Act) that is purchasing for its own account or for the
account of a "qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in reliance on
such Rule 144A, and in each case in reliance on Rule 144A.
___ Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements under the Securities
Act in accordance with Rule 144 (or any successor thereto) ("Rule
144") under the Securities Act.
___ Such Security is being transferred to a non-U.S. Person in an offshore
transaction in compliance with Rule 904 of Regulation S under the
Securities Act (or any successor thereto).
A-17
___ Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which
such Security will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will hold
any such Securities in the form of beneficial interests in a Global Note which
is a "restricted security" within the meaning of Rule 144 under the Securities
Act, then such transfer can only be made pursuant to (i) Rule 144A under the
Securities Act and such transferee must be a "qualified institutional buyer" (as
defined in Rule 144A) or (ii) Regulation S under the Securities Act.
Date: ______________________________ _________________________________
Insert Name of Transferor)
A-18
