EXHIBIT 4.2
INDENTURE, dated as of July 12, 2000, between AVON PRODUCTS, INC., a
corporation duly organized and existing under the laws of the State of New
York, as Issuer (herein called the "Company"), having its principal office at
1345 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000, and THE CHASE
MANHATTAN BANK, a banking corporation duly organized under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its Zero
Coupon Convertible Senior Notes due 2020 (each a "Security" and collectively,
the "Securities") of substantially the tenor and amount hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(iv) the words "herein," "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
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"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct 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 Members" has the meaning specified in Section 3.08.
"Average Quoted Price" has the meaning specified in Section 13.01.
"Board of Directors" means, with respect to any Person, either the board
of directors of such Person or any duly authorized committee of that board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, or executive order or governmental decree to be closed.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the shares of Common Stock, par value $.25 per share,
of the Company as it exists on the date of this Indenture or any other shares
of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Notice" has the meaning specified in Section 11.08.
"Company Notice Date" has the meaning specified in Section 11.08.
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"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or any Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Conversion Agent" means the Trustee or such other office or agency
designated by the Company where Securities may be presented for conversion.
"Conversion Date" has the meaning specified in Section 13.02.
"Conversion Rate" has the meaning specified in Section 13.01.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Capital Markets Fiduciary Services.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Default" means any event that is or with the passage of time or the
giving of notice or both would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 12.02.
"Depositary" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning specified in Section 5.01.
"Ex-Dividend Time" has the meaning specified in Section 13.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Fundamental Change" has the meaning specified in Section 11.09.
"Fundamental Change Company Notice" has the meaning specified in Section
11.09.
"Fundamental Change Company Notice Date" has the meaning specified in
Section 11.09.
"Fundamental Change Repurchase Date" has the meaning specified in Section
11.09.
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"Fundamental Change Repurchase Notice" has the meaning specified in
Section 11.09.
"Fundamental Change Repurchase Price" has the meaning specified in Section
11.09.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, in each case, as in effect in the United States on the date hereof.
"Global Security" means a Security in global form registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Banc of America
Securities LLC, Chase Securities Inc., Deutsche Bank Securities Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
"Interest Payment Date" has the meaning specified in Section 12.01.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Issue Date" means the date the Securities are originally issued or deemed
issued as set forth on the face of the Security under this Indenture.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is
sold as set forth on the face of the Security.
"Market Price" has the meaning specified in Section 11.08.
"Maturity", when used with respect to any Security, means the date on
which the principal, Restated Principal Amount, Purchase Price or Fundamental
Change Repurchase Price of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity, on a Redemption Date, Purchase
Date or Fundamental Change Repurchase Date, or by declaration of acceleration
or otherwise.
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"Non-U.S. Person" means a Person who is not a U.S. person, as defined in
Regulation S.
"Notice of Default" has the meaning specified in Section 5.01.
"Offering Memorandum" means the Offering Memorandum dated July 7, 2000,
offering the Securities for sale as provided therein.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or any Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.
"Offshore Global Securities" has the meaning specified in Section 2.01.
"Offshore Physical Securities" has the meaning specified in Section 2.01.
"Opinion of Counsel" means a written opinion of counsel, who may be
external or in-house counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
"Option Exercise Date" has the meaning specified in Section 12.01.
"Original Issue Discount" of any Security means the difference between the
Issue Price and the Principal Amount at Maturity of the Security as set forth
on the face of the Security.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that if
such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given to the Holders as herein
provided, or provision satisfactory to a Responsible Officer of the
Trustee shall have been made for giving such notice; and
(iii) Securities which have been paid or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the Company;
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provided, however, that, in determining whether the Holders of the requisite
Principal Amount at Maturity of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, interest on or Redemption Price of any Securities on behalf of
the Company. The Trustee shall initially be the Paying Agent.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Physical Securities" has the meaning specified in Section 2.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Amount at Maturity" of a Security means the Principal Amount at
Maturity as set forth on the face of the Security.
"Purchase Agreement" means the Purchase Agreement, dated as of July 7,
2000, entered into by the Company and the Initial Purchasers in connection with
the sale of the Securities.
"Purchase Date" has the meaning specified in Section 11.08.
"Purchase Notice" has the meaning specified in Section 11.08.
"Purchase Price" has the meaning specified in Section 11.08.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A.
"Redemption Date" shall mean the date specified for redemption of the
Securities in accordance with the terms of the Securities and Article 11
hereof.
"Redemption Price" has the meaning specified in the Securities.
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"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of July 12, 2000, between the Company and the Initial Purchasers, for
the benefit of themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Regular Record Date" has the meaning specified in Section 12.01.
"Regulation S" means Regulation S under the Securities Act.
"Resale Registration Statement" means a registration statement under the
Securities Act registering the Securities for resale pursuant to the terms of
the Registration Rights Agreement.
"Responsible Officer" means any officer of the Trustee within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular matter,
any other officer of the Trustee to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Restated Principal Amount" has the meaning specified in Section 12.01.
"Restricted Global Security" means a Global Security representing
Restricted Securities.
"Restricted Security" or "Restricted Securities" has the meaning specified
in Section 2.05.
"Rights" has the meaning specified in Section 13.19.
"Rights Agreement" has the meaning specified in Section 13.19.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 2.03.
"Sale Price" has the meaning specified in Section 11.08.
"Security" or "Securities" has the meaning specified in the first
paragraph of the Recitals of the Company.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
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"Special Record Date" has the meaning specified in Section 12.02.
"Stated Maturity," when used with respect to any Security, means the date
specified in such Security as the fixed date on which an amount equal to the
Principal Amount at Maturity of such Security is due and payable or, if the
Securities have been converted into semi-annual coupon notes, the date
specified in such Security as the fixed date on which the Restated Principal
Amount thereof or any installment of interest thereon is due and payable.
"Stock Transfer Agent" means EquiServe or such other Person designated by
the Company as the transfer agent for the Common Stock.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Tax Event" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after July 7, 2000, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws, rules or any regulations
thereunder of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced or which action is taken, on or after
July 7, 2000, there is more than an insubstantial risk that interest (including
Original Issue Discount) payable on the Securities either (i) would not be
deductible on a current accrual basis or (ii) would not be deductible under any
other method, in either case in whole or in part, by the Company (by reason of
deferral, disallowance, or otherwise) for United States Federal income tax
purposes.
"Tax Event Date" has the meaning specified in Section 12.01.
"Time of Determination" has the meaning specified in Section 13.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Unrestricted Global Security" means a Global Security representing
Securities which are not Restricted Securities.
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"U.S. Global Securities" has the meaning specified in Section 2.01.
"U.S. Physical Securities" has the meaning specified in Section 2.01.
"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".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto:
(ii) 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;
(iii) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or
9
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
7.01) prior to such first solicitation or vote, as the case may be. With regard
to any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor
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or in lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 1.05. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Capital Markets Fiduciary Services, or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Treasurer.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.12. 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 1.13. Legal Holiday. In any case where any Interest Payment Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or at the Stated Maturity, provided that no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or Stated Maturity or, as the case may be.
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Internal Revenue Code of 1986,
as amended, and regulations thereunder, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
Securities offered and sold in reliance on Rule 144A shall be issued in
the form of permanent U.S. Global Securities in registered form in
substantially the form set forth in this Article (the "U.S. Global
Securities"). Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued, subject to certain exceptions, in the form of
permanent Global Securities in registered form in substantially the form set
forth in this Article (the "Offshore Global Securities"). The aggregate
Principal Amount at Maturity of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
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Securities offered and sold in reliance on any other exemption from
registration under the Securities Act other than as described in the preceding
paragraph, and those securities offered and sold in offshore transactions in
reliance on Regulation S that cannot be issued in the form of Global Securities
under the laws of the relevant jurisdiction (the "Offshore Physical
Securities"), shall be issued in the form of permanent certificated Securities
in registered form, in substantially the form set forth in this Article (the
"U.S. Physical Securities"). The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively referred to as the "Physical
Securities."
SECTION 2.02. Form of Face of Security. FOR PURPOSES OF SECTIONS 1273 AND
1275 OF THE INTERNAL REVENUE CODE, THE ISSUE PRICE AND AMOUNT OF ORIGINAL ISSUE
DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT AT MATURITY OF THIS
SECURITY ARE $475.66 AND $524.34, RESPECTIVELY, THE ISSUE DATE IS JULY 12, 2000
AND THE YIELD TO MATURITY IS 3.75%.
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN
OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904 UNDER REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND
OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.
13
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS
OF, A REGISTRATION RIGHTS AGREEMENT, DATED AS OF JULY 12, 2000, ENTERED INTO BY
THE COMPANY FOR THE BENEFIT OF CERTAIN HOLDERS FROM TIME TO TIME OF
SECURITIES.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- 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 MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AVON PRODUCTS, INC.
Zero Coupon Convertible Senior Note due 2020
CUSIP No. 000000XX0 $___________ Principal Amount at
Maturity
Issue Date: July 12, 2000 Original Issue Discount: $524.34
Issue Price: $475.66 (for each $1,000 Principal
(for each $1,000 Principal Amount at Maturity)
Amount at Maturity)
Avon Products, Inc., a corporation duly organized and existing under the
laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________, or registered assigns, the
Principal Amount at Maturity set forth above [INCLUDE IF SECURITY IS A GLOBAL
SECURITY -- (which amount may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary, in accordance with the rules and procedures of the Depositary)] on
July 12, 2020.
14
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AVON PRODUCTS, INC.
By
-----------------------------------
Attest:
------------------------------------
SECTION 2.03. Form of Reverse of Security. This Security is one of a duly
authorized issue of Securities of the Company designated as its Zero Coupon
Convertible Senior Notes due 2020, limited in aggregate Principal Amount at
Maturity to $735,820,000 (subject to increase by up to $105,118,000 in the
event the Initial Purchasers exercise the over-allotment option granted to them
in the Purchase Agreement) (herein called the "Securities"), issued and to be
issued under an Indenture, dated as of July 12, 2000 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
This Security shall not bear interest, except as specified herein.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 3.75% per annum, on a semi-annual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
from the Issue Date of this Security.
Redemption at the Option of the Company - No sinking fund is provided for
the Securities. The Securities are redeemable as a whole, or from time to time
in part, at any time at
15
the option of the Company at a Redemption Price equal to the Issue Price plus
the accrued Original Issue Discount to the Redemption Date, provided that the
Securities are not redeemable prior to July 12, 2003.
The table below shows Redemption Prices of a Security per $1,000 Principal
Amount at Maturity on the dates shown below and at Stated Maturity, which
prices equal the Issue Price plus accrued Original Issue Discount calculated to
each such date. The Redemption Price of a Security redeemed between such dates
shall include an additional amount reflecting the additional Original Issue
Discount accrued since the next preceding date in the table.
16
(2) (3)
(1) Accrued Original Redemption
Note Issue Discount Price
Redemption Date Issue Price at 3.75% (1) + (2)
--------------- ----------- -------- ---------
July 12, 2003........... $475.66 $ 56.08 $ 531.74
July 12, 2004........... $475.66 $ 76.21 $ 551.87
July 12, 2005........... $475.66 $ 97.10 $ 572.76
July 12, 2006........... $475.66 $ 118.78 $ 594.44
July 12, 2007........... $475.66 $ 141.28 $ 616.94
July 12, 2008........... $475.66 $ 164.63 $ 640.29
July 12, 2009........... $475.66 $ 188.87 $ 664.53
July 12, 2010........... $475.66 $ 214.02 $ 689.68
July 12, 2011........... $475.66 $ 240.13 $ 715.79
July 12, 2012........... $475.66 $ 267.22 $ 742.88
July 12, 2013........... $475.66 $ 295.34 $ 771.00
July 12, 2014........... $475.66 $ 324.52 $ 800.18
July 12, 2015........... $475.66 $ 354.81 $ 830.47
July 12, 2016........... $475.66 $ 386.24 $ 861.90
July 12, 2017........... $475.66 $ 418.87 $ 894.53
July 12, 2018........... $475.66 $ 452.73 $ 928.39
July 12, 2019........... $475.66 $ 487.87 $ 963.53
At Stated Maturity...... $475.66 $ 524.34 $1,000.00
If converted to a semi-annual coupon note following the occurrence of a
Tax Event, this Security will be redeemable at the Restated Principal Amount
plus accrued and unpaid interest from the later of the date of such conversion
and the date on which interest was last paid through the Redemption Date; but
in no event will this Security be redeemable before July 12, 2003.
Purchase By the Company at the Option of the Holder - Subject to the terms
and conditions of the Indenture, the Company shall become obligated to
purchase, at the option of the Holder, the Securities held by such Holder on
the following Purchase Dates and at the following Purchase Prices per $1,000
Principal Amount at Maturity, upon delivery of a Purchase Notice containing the
information set forth in the Indenture, at any time from the opening of
business on the date that is 20 Business Days prior to such Purchase Date until
the close of business on such Purchase Date and upon delivery of the Securities
to the Paying Agent by the Holder as set forth in the Indenture.
Purchase Date Purchase Price
------------- --------------
July 12, 2003 $531.74
July 12, 2008 $640.29
July 12, 2013 $771.00
17
The Purchase Price (equal to the Issue Price plus accrued Original Issue
Discount to the Purchase Date) may be paid, at the option of the Company, in
cash or by the issuance and delivery of shares of Common Stock of the Company,
or in any combination thereof.
If prior to a Purchase Date this Security has been converted to a
semi-annual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the later of the date of such conversion and the date on which
interest was last paid to the Purchase Date.
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to repurchase the Securities if a
Fundamental Change occurs at any time prior to July 12, 2003 for a Fundamental
Change Repurchase Price equal to the Issue Price plus accrued Original Issue
Discount to the Fundamental Change Repurchase Date, which Fundamental Change
Repurchase Price shall be paid in cash or, at the option of the Company, in
Common Stock of the Company, as long as it is then listed on a national
securities exchange or traded on the Nasdaq Stock Market, or any combination
thereof. The fair market value of the Common Stock for such purpose shall be
97.5% of the Market Price (as defined in the Indenture) of the Common Stock. If
prior to a Fundamental Change Repurchase Date this Security has been converted
to a semi-annual coupon note following the occurrence of a Tax Event, the
Fundamental Change Repurchase Price shall be equal to the Restated Principal
Amount plus accrued and unpaid interest from the later of the date of such
conversion and the date on which interest was last paid to the Fundamental
Change Repurchase Date.
Holders have the right to withdraw any Purchase Notice or Fundamental
Change Repurchase Notice, as the case may be, by delivering to the Paying Agent
a written notice of withdrawal in accordance with the provisions of the
Indenture.
If cash and/or securities sufficient to pay the Purchase Price or
Fundamental Change Repurchase Price, as the case may be, of all Securities or
portions thereof to be purchased as of the Purchase Date or the Fundamental
Change Repurchase Date, as the case may be, is deposited with the Paying Agent
on the Business Day following the Purchase Date or the Fundamental Change
Repurchase Date, as the case may be, Original Issue Discount ceases to accrue
on such Securities (or portions thereof) immediately after such Purchase Date
or Fundamental Change Repurchase Date, as the case may be, and the Holder
thereof shall have no other rights as such (other than the right to receive the
Purchase Price or Fundamental Change Repurchase Price, as the case may be, upon
surrender of such Security).
If the Company elects to pay all or part of the Purchase Price or the
Fundamental Change Repurchase Price in Common Stock, the portion of accrued
Original Issue Discount (or interest if the Company has exercised the option to
convert the Securities into semi-annual coupon notes as provided for herein),
attributable to the period from the Issue Date (or, if the Company has
exercised its option to convert the Securities into semi-annual coupon notes,
the later of (x) the date of such exercise, and (y) the date on which interest
was last paid) through the Purchase Date or the Fundamental Change Repurchase
Date, as the case may be, with respect to the surrendered Security shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through the delivery of the Common Stock (together
with cash payment, if any, in lieu of fractional shares) and cash, if any, in
exchange for the Security being
18
purchased pursuant to the terms hereof; and such cash, if any, and the fair
market value of such shares of Common Stock (together with any such cash
payment in lieu of fractional shares) shall be treated as delivered pro rata,
to the extent thereof, first in exchange for Original Issue Discount (or
interest, if the Company has exercised its option to convert the Securities
into semi-annual coupon notes) accrued through the Purchase Date (or the
Fundamental Change Repurchase Date, as the case may be), and the balance, if
any, of such cash and the fair market value of such Common Stock (and any such
cash payment) shall be treated as delivered in exchange for the Issue Price of
the Security being purchased pursuant to the provisions hereof.
Conversion - Subject to the next two succeeding sentences, a Holder of a
Security may convert it into Common Stock of the Company at any time before the
close of business on July 12, 2020. If the Security is called for redemption,
the Holder may convert it at any time before the close of business on the
Business Day immediately preceding the Redemption Date. A Security in respect
of which a Holder has delivered a Purchase Notice or Fundamental Change
Repurchase Notice exercising the option of such Holder to require the Company
to purchase such Security may be converted only if such Purchase Notice or
Fundamental Change Repurchase Notice is withdrawn in accordance with the terms
of the Indenture.
The initial Conversion Rate is 8.2723 shares of Common Stock per $1,000
Principal Amount at Maturity, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
In the event the Company exercises its option pursuant to Section 12.01 of
the Indenture to have interest in lieu of Original Issue Discount accrue on the
Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of shares of Common Stock such Holder would have
received if the Company had not exercised such option. If the Company exercises
such option, Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date (except
Securities to be redeemed on a date within such period) must be accompanied by
payment of an amount equal to the interest thereon that the registered Holder
is to receive. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion.
To convert a Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent for cancellation, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. No
payment or adjustment will be made for dividends on the Common Stock except as
provided in the Indenture. On conversion of a Security, that portion of accrued
Original Issue Discount (or interest if the Company has exercised its option
provided for below in "Tax Event") attributable to the period from the Issue
Date (or, if the Company has exercised the option referred to below in "Tax
Event", the later of (x) the date of such exercise and (y) the date on which
interest was last paid) through the
19
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through the delivery of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the terms hereof; and the fair market value of such
shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for Original Issue Discount (or interest, if the Company has exercised
its option provided for below in "Tax Event") accrued through the Conversion
Date, and the balance, if any, of such fair market value of such Common Stock
(and any such cash payment) shall be treated as issued in exchange for the
Issue Price of the Security being converted pursuant to the provisions hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price at the Time of
Determination; and distributions to such holders of assets or debt securities
of the Company or certain rights to purchase securities of the Company
(excluding certain cash dividends or distributions). However, no adjustment
need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase the
Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another Person.
Tax Event - (a) From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event and (ii) the date the Company exercises such option,
whichever is later (the "Option Exercise Date"), at the option of the Company,
interest in lieu of future Original Issue Discount shall accrue at the rate of
3.75% per annum on a principal amount per Security (the "Restated Principal
Amount") equal to the Issue Price plus Original Issue Discount accrued through
the Option Exercise Date and shall be payable semi-annually on January 12 and
July 12 of each year (each an "Interest Payment Date") to holders of record at
the close of business on December 29 or June 28 (each a "Regular Record Date")
immediately preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from the Option Exercise Date.
(b) Interest on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States, provided that with respect to any Holder, such Holder shall
have furnished to the Paying Agent all required wire payment instructions no
later than the related Regular Record Date, or if no such instructions have
been furnished, by check payable to such Holder.
20
(c) Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 12.02(b) of the Indenture.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a deposit or
withdrawal of an interest in this Security, including an exchange, transfer,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted Security, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder, to the extent
required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"). "Rule 144A
Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto).]
If an Event of Default shall occur and be continuing, the Issue Price plus
the Original Issue Discount accrued through such date on all the Securities may
be declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate Principal Amount at Maturity of the
Outstanding Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate Principal Amount at Maturity of
the Outstanding Securities, on behalf of the Holders of all the Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in Principal Amount at Maturity of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in Principal Amount at
21
Maturity of Outstanding Securities a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of said principal hereof or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal, Restated Principal Amount,
Purchase Price or Fundamental Change Repurchase Price of, and interest, if any,
on, this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate Principal Amount at
Maturity, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 above that amount.
As provided in the Indenture and subject to certain limitations therein set
forth. Securities are exchangeable for a like aggregate Principal Amount at
Maturity of Securities of a different authorized denomination, as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
22
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint _____________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: __________________ Signed: ____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:________________________________
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) July 12, 2002 the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Security is being transferred:
[Check One]
(1) [X] to the Company or a subsidiary thereof; or
(2) [X] pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) [X] outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(4) [X] pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or
23
(5) [X] pursuant to an effective registration statement under the
Securities Act; or
(6) [X] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof, provided that if box (3), (4) or (6)
is checked, the Company may require, prior to registering any such transfer of
the Securities, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3)) and other information
as the Company may reasonably request 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.
If none of the foregoing boxes is checked, the Trustee or Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.10 of the Indenture
shall have been satisfied.
Date: __________________ Signed: ____________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:________________________________
24
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: __________________ Signed: ____________________
NOTICE: To be executed by an executive officer.
CONVERSION NOTICE
If you want to convert this Security into Common Stock of the Company,
check the box:
[ ]
To convert only part of this Security, state the Principal Amount at
Maturity to be converted (which must be $1,000 or an integral multiple of
$1,000):
$__________________________________
If you want the stock certificate made out in another person's name, fill
in the form below:
-------------------------------------------------------------------------------
(Insert other person's social security or tax ID no.)
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(Print or type other person's name, address and zip code)
Date: __________________ Signed: ____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:________________________________
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SECTION 2.04. Form of Trustee's Certificate of Authentication. This is one
of the Securities referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:____________________________________
Authorized Officer
SECTION 2.05. Legend on Restricted Securities. During the period beginning
on July 12, 2000 and ending on the date two years from such date, any Security
including any Security issued in exchange therefor or in lieu thereof, shall be
deemed a "Restricted Security" and shall be subject to the restrictions on
transfer provided in the legends set forth on the face of the form of Security
in Section 2.02; provided, however, that the term "Restricted Security" shall
not include any Securities as to which restrictions have been terminated in
accordance with Section 3.05. All Securities shall bear the applicable legends
set forth on the face of the form of Security in Section 2.02. Except as
provided in Section 3.05 and Section 3.10, the Trustee shall not issue any
unlegended Security until it has received an Officers' Certificate from the
Company directing it to do so.
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate Principal Amount at Maturity
of Securities which may be authenticated and delivered under this Indenture is
limited to $735,820,000 (subject to increase by up to $105,118,000 in the event
the Initial Purchasers exercise the over-allotment option granted to them in
the Purchase Agreement), except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 3.04, 3.05, 3.06 or 9.06.
The Securities shall be known and designated as the "Zero Coupon
Convertible Senior Notes due 2020" of the Company with a Stated Maturity on
July 12, 2020.
The Issue Price and Original Issue Discount accrued on the Securities
shall be payable at the office or agency of the Company in The City of New York
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose; provided, however, that at the option of the Company
payments may be made by wire transfer or by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
26
The Securities shall not have the benefit of a sinking fund.
The Securities shall not be superior in right of payment to, and shall
rank pari passu with, all other unsecured and unsubordinated indebtedness of
the Company.
SECTION 3.02. Denominations. The Securities shall be issuable only in
registered form without coupons and in denominations of $1,000 and any integral
multiple of $1,000 above that amount.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities. The Company Order shall specify
the amount of Securities to be authenticated, and shall further specify the
amount of such Securities to be issued as a Global Security, as Offshore
Physical Securities or as U.S. Physical Securities. The Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the
27
temporary Securities at any office or agency of the Company designated pursuant
to Section 10.02, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like Principal
Amount at Maturity of definitive Securities of authorized denominations. Until
so exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
(the "Security Registrar") for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office
or agency of the Company designated pursuant to Section 10.02 for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations and of a like aggregate Principal
Amount at Maturity and tenor each such Security bearing such restrictive
legends as may be required by this Indenture (including Sections 2.02, 2.05 and
3.10).
At the option of the Holder and subject to the other provisions of this
Section 3.05 and to Section 3.10, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate Principal
Amount at Maturity and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing. As a condition to
the registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.
Except as provided in the following sentence and in Section 3.10, all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and shall bear the legend required by Sections 2.02 and 2.05, unless
the Company shall have delivered to the Trustee (and the Security
28
Registrar, if other than the Trustee) a Company Order stating that the Security
is not a Restricted Security and may be issued without such legend thereon.
Securities which are issued upon registration of transfer of, or in exchange
for, Securities which are not Restricted Securities shall not be Restricted
Securities and shall not bear such legend.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04 or 9.06 not involving any transfer.
The Company shall not be required to exchange or register a transfer of
any Security (i) during the 15-day period immediately preceding the mailing of
any notice of redemption of any Security, or (ii) after any notice of
redemption has been given to Holders of Securities, except, where such notice
provides that such Security is to be redeemed only in part, the Company shall
be required to exchange or register a transfer of the portion thereof not to be
redeemed.
(b) Beneficial ownership of every Restricted Security shall be subject to
the restrictions on transfer provided in the legends required to be set forth
on the face of each Restricted Security pursuant to Sections 2.02 and 2.05,
unless such restrictions on transfer shall be terminated in accordance with
this Section 3.05(b) or Section 3.10. The Holder of each Restricted Security,
by such Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by this Section 3.05 and Sections 2.02, 2.05 and
3.10 upon the transferability of any particular Restricted Security shall cease
and terminate upon delivery by the Company to the Trustee of an Officers'
Certificate stating that such Restricted Security has been sold pursuant to an
effective Resale Registration Statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor
provision thereto). Any Restricted Security as to which the Company has
delivered to the Trustee an Officers' Certificate that such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon surrender of such Restricted Security for exchange to the
Security Registrar in accordance with the provisions of this Section 3.05, be
exchanged for a new Security, of like tenor and aggregate Principal Amount at
Maturity, which shall not bear the restrictive legends required by Sections
2.02 and 2.05. The Company shall inform the Trustee in writing of the effective
date of any Resale Registration Statement registering 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 Resale
Registration Statement.
As used in the preceding two paragraphs of this Section 3.05, the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
(c) Neither the Trustee nor any of its agents shall (i) have any duty to
monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have
29
any duty to obtain documentation on any transfers or exchanges other than as
specifically required hereunder.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and Principal Amount at Maturity and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and Principal Amount at Maturity and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable or has been called for redemption in
full, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal on such Security (and interest, if the Securities have
been converted into semi-annual coupon notes) and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.08. Book-entry Provisions for Global Securities. (a) The Global
Securities initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for the Depositary and (iii) bear legends as set forth on the face of the form
of Security in Section 2.02.
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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 the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the 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 impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be
transferred or exchanged, in whole or in part, for Physical Securities in
accordance with the rules and procedures of the Depositary and the provisions
of Section 3.10. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Securities if (A) such Depositary has notified the Company (or the Company
becomes aware) that the Depositary (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act when the Depositary is required to be so
registered to act as such Depositary and, in both such cases, no successor
Depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of such event, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and the
Outstanding Securities shall have become due and payable pursuant to Section
5.02 and the Trustee has requested that Physical Securities be issued or (C)
the Company has decided to discontinue use of book-entry transfers through the
Depositary (or a successor Depositary); provided that Holders of Securities
offered and sold in reliance on Rule 144A or Regulation S in the form of
permanent certificated Securities in registered form shall have the right,
subject to applicable law, to request that such Securities be exchanged for
interests in the applicable Global Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical Securities
are to be issued) reflect on its books and records the date and a decrease in
the Principal Amount at Maturity of the Global Security in an amount equal to
the Principal Amount at Maturity of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Securities of like tenor
and amount.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Security, an equal aggregate Principal Amount at Maturity of
Physical Securities of authorized denominations and the same tenor.
(e) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in the Global Security pursuant to paragraph (c) or
(d) shall, except as
31
otherwise provided by paragraphs (a)(i)(x) and (c) of Section 3.10, bear the
legend regarding transfer restrictions applicable to the Physical Securities
set forth on the face of the form of Security in Section 2.02.
(f) The Holder of the Global Securities 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.
SECTION 3.09. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel
and destroy all Securities surrendered for registration of transfer, exchange,
payment, purchase, repurchase, redemption, conversion (pursuant to Article 13
hereof) or cancellation in accordance with its customary practices. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation. The Company may not issue new Securities to replace Securities it
has paid in full or delivered to the Trustee for cancellation.
SECTION 3.10. Special Transfer Provisions. (a) Transfers to Non-U.S.
Persons. The following provisions shall apply with respect to the registration
of any proposed transfer of a Security constituting a Restricted Security to
any Non-U.S. Person to which Securities in the form of Global Securities cannot
be issued:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Security
bears the legend required by Sections 2.02 and 2.05, if (x) the requested
transfer is after July 12, 2002 or (y) the proposed transferor has
delivered to the Security Registrar a certificate substantially in the
form of Exhibit A hereto, together with such other certifications, legal
opinions or other information as the Company 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
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Security
Registrar of (x) the certificate, if any, required by paragraph (i) above
and instructions given in accordance with the Depositary's and the
Security Registrar's procedures,
whereupon (1) the Security Registrar shall reflect on its books and records the
date and (if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the Principal Amount at Maturity of the Global
Security in an amount equal to the Principal Amount at Maturity of the
beneficial interest in the Global Security to be transferred, and (b) the
Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Securities of like tenor and amount.
32
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a Security constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or
has otherwise advised the Company and the Security Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security, upon
receipt by the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an increase
in the Principal Amount at Maturity of the Global Security in an amount
equal to the Principal Amount at Maturity of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities not bearing the legends required by Sections 2.02
and 2.05, the Security Registrar shall deliver Securities that do not bear such
legends. Upon the registration of transfer, exchange or replacement of
Securities bearing the legends required by Sections 2.02 and 2.05, the Security
Registrar shall deliver only Securities that bear such legends unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 3.10 exists or
(ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing the legends
required by Sections 2.02 and 2.05, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture and
in such legends and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to this Section 3.10. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), 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
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and
(B) Securities for whose payment money has theretofore been deposited
with the Trustee in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company
has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness evidenced by 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 Stated Maturity or
Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of Clause
(a) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee.
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ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of the Principal Amount at Maturity (or,
if the Securities have been converted to semi-annual coupon notes
following a Tax Event, the Restated Principal Amount), Redemption Price,
Purchase Price or Fundamental Change Repurchase Price on any Security when
it becomes due and payable; or
(b) default in the payment of interest upon any Security, if the
Company has exercised its option following a Tax Event to convert the
Securities into semi-annual coupon notes, when such interest becomes due
and payable, and continuance of such default for a period of 30 days; or
(c) default in the performance of any covenant, agreement or
condition of the Company in this Indenture or the Securities, and
continuance of such default for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in Principal
Amount at Maturity of the Outstanding Securities a written notice
specifying such default and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal
or State law. or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
35
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such
action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. (a) If
an Event of Default (other than those specified in Sections 5.01(d) and
5.01(e)) occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in Principal Amount at Maturity of the
Outstanding Securities may declare the Issue Price plus accrued Original Issue
Discount of all the Outstanding Securities to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such Issue Price plus accrued Original Issue
Discount shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default
specified in Sections 5.01(d) or 5.01(e), the Issue Price plus accrued Original
Issue Discount of all Outstanding Securities will ipso facto become due and
payable without any declaration or other Act on the part of the Trustee or any
Holder.
(b) At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in Principal Amount at Maturity of the Outstanding Securities, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities, if the Company has
exercised its option following a Tax Event to convert the Securities
into semi-annual coupon notes,
(B) the Issue Price plus accrued Original Issue Discount of any
Securities which have become due otherwise than by such declaration
of acceleration, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07;
and
(ii) all Events of Default, other than the non-payment of the Issue
Price plus accrued Original Issue Discount of Securities which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(i) default is made in the payment of any interest on any Security
when such interest becomes due and payable, if the Company has exercised
its option following a Tax Event to convert the Securities into
semi-annual coupon notes, and such default continues for a period of 30
days, or
(ii) default is made in the payment of the Issue Price plus accrued
Original Issue Discount, Restated Principal Amount, Redemption Price,
Purchase Price or Fundamental Change Repurchase Price of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel. and any
other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money to Holders, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07; and
SECOND: To the payment of the amounts then due and unpaid on the
Securities for the Principal Amount at Maturity, Redemption Price,
Purchase Price, Fundamental Change Repurchase Price or interest, if any,
as the case may be, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities.
SECTION 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(ii) the Holders of not less than 25% in aggregate Principal Amount
at Maturity of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) 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 at Maturity of the Outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or
38
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount at Maturity (or if the Securities
have been converted to semi-annual coupon notes following a Tax Event pursuant
to Article 12, the Restated Principal Amount), Redemption Price, Purchase
Price, Fundamental Change Repurchase Price or interest, if any, in respect of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 13, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in Principal
Amount at Maturity of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that
(i) such direction shall not be in conflict with any rule of law or
with this Indenture, and
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(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in Principal Amount at Maturity of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past default hereunder
and its consequences, except a default
(i) Described in Section 5.01(a) or (b), or
(ii) in respect of a covenant or provision hereof which under Article
9 cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected, or
(iii) which constitutes a failure to convert any Security in
accordance with the terms of Article 13.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney's fees, 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; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in Principal Amount at Maturity of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the
maturity of such Security.
SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay, or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, 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, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) 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
41
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities unless either (i) a
Responsible Officer shall have actual knowledge of such Default or Event
of Default or (ii) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other obligor
on such Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.04. Not Responsible for Recitals. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
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(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture. To secure the Company's payment obligations in this Section
6.07, the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on the Securities. Such Lien shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture. When the Trustee incurs expenses or renders services after a
Default or an Event of Default specified in Sections 5.01(d) or 5.01(e) hereof
occurs, the expenses and the compensation for the services (including, the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under U.S. Code, Title 11 or any other similar foreign, federal
or state law for the relief of debtors.
SECTION 6.08. Disqualification; Conflicting Interests. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000.000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to
43
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
majority in Principal Amount at Maturity of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or
(iv) a receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation.
then, in any such case, (A) the Company by a Company Order may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Company Order, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in Principal Amount at Maturity of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
45
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar; provided, however, that no such list need be
furnished so long as the Trustee is acting as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.01 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted
no later than January 31 in each calendar year, commencing in January 2001.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission. In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
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ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(i) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest on
all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(ii) immediately 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 happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article.
SECTION 8.02. 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 the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, 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, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default for the benefit of the
Holders; or
(d) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided that such action pursuant to this Clause (d)
shall not adversely affect the interests of the Holders in any material
respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in Principal Amount at
Maturity of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(i) make any change in the manner or rate of accrual in connection
with Original Issue Discount, reduce the yield to maturity referred to in
the Securities, reduce the rate of interest referred to in Section 12.01
upon the occurrence of a Tax Event, or extend the time for payment of
interest, if any, on any Security;
(ii) reduce the Principal Amount at Maturity, Restated Principal
Amount or the Issue Price of or extend the Stated Maturity of any
Security;
(iii) reduce the Redemption Price, Purchase Price or Fundamental
Change Repurchase Price of any Security;
(iv) make any Security payable in money or securities other than that
stated in the Security;
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(v) make any change that adversely affects the right to convert any
Security; or
(vi) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof
and this Indenture; or
(vii) reduce the percentage in Principal Amount at Maturity of the
Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(viii) modify any of the provisions of this Section, Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE 10
COVENANTS
SECTION 10.01. Payments. The Company shall duly and punctually make all
payments in respect of the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. 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
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York)
where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 10.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of any payment in respect of any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to make the payment so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of any payment in respect of any Securities, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the
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making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the making of payments in respect of any Security and
remaining unclaimed for two years after such payment has become due shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
SECTION 10.04. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 10.05. Existence. Subject to Article 8, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.06. Reports and Delivery of Certain Information. Whether or not
required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall furnish to the Holders of the
Securities (i) all quarterly and annual financial information that is
substantially equivalent to that which would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Company were required
to file such Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section and, with respect to the
annual information only, a
51
report thereon by the Company's certified independent accountants and (ii) all
reports that are substantially equivalent to that which would be required to be
filed with the Commission on Form 8-K if the Company were required to file such
reports. In addition, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information with the
Commission for public availability (unless the Commission will not accept such
a filing) and make such information available to investors who request it in
writing. So long as any of the Securities remain Outstanding, the Company shall
make available to any prospective purchaser of Securities or beneficial owner
of Securities in connection with any sale thereof the information required by
Rule 144A(d)(4) under the Securities Act, until the earlier of (a) such time as
the Holders thereof have disposed of such Securities pursuant to an effective
Resale Registration Statement under the Securities Act and (b) July 12, 2002.
SECTION 10.07. Resale of Certain Securities. During the period beginning
on the Issue Date and ending on the date that is two years from the Issue Date,
the Company shall not, and shall not permit any of its "affiliates" (as defined
under Rule 144 under the Securities Act or any successor provision thereto) to,
resell any Securities which constitute "restricted securities" under Rule 144
that have been reacquired by any of them. The Trustee shall have no
responsibility in respect of the Company's performance of its agreement in the
preceding sentence.
SECTION 10.08. Book-Entry System. If the Securities cease to trade in the
Depositary's book-entry settlement system, the Company covenants and agrees
that it shall use reasonable efforts to make such other book-entry arrangements
that it determines are reasonable for the Securities.
SECTION 10.09. Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of Original Issue Discount (including daily rates
and accrual periods) accrued on Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such Original Issue
Discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE 11
REDEMPTION AND PURCHASES
SECTION 11.01. Right to Redeem; Notices to Trustee. The Company, at its
option, may redeem the Securities in accordance with the provisions of the
Securities and the Indenture. If the Company elects to redeem Securities, it
shall notify the Trustee in writing of the Redemption Date, the Principal
Amount at Maturity of Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 11.01 by a Company Order, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
52
SECTION 11.02. Selection of Securities to Be Redeemed. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed pro rata or by lot or by any other method the Trustee considers
fair and appropriate (so long as such method is not prohibited by the rules of
any stock exchange on which the Securities are then listed). The Trustee shall
make the selection at least 30 days but not more than 60 days before the
Redemption Date from Outstanding Securities not previously called for
redemption.
Securities and portions of them the Trustee selects shall be in Principal
Amounts at Maturity of $1,000 or integral multiples of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
SECTION 11.03. Notice of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the Business Day immediately
preceding the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth therein and in this Indenture;
(7) that Securities called for redemption must be surrendered to the
Paying Agent for cancellation to collect the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts at Maturity of the
particular Securities to be redeemed;
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(9) that, unless the Company defaults in making payment of such
Redemption Price, Original Issue Discount on Securities called for
redemption, or interest, if any, will cease to accrue on and after
the Redemption Date; and
(10) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense, provided that the Company
makes such request at least three Business Days prior to the proposed date of
mailing of such notice of redemption.
SECTION 11.04. Effect of Notice of Redemption. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice.
SECTION 11.05. Deposit of Redemption Price. Prior to 10:00 a.m. (New York
City Time), on a Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return
to the Company any money, not required for that purpose because of conversion
of Securities pursuant to Article 13. If such money is then held by the Company
in trust and is not required for such purpose it shall be discharged from such
trust.
SECTION 11.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount at Maturity to the unredeemed portion of
the Security surrendered.
SECTION 11.07. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of such
Securities. Notwithstanding anything to the contrary contained in this Article
11, the obligation of the Company to pay the Redemption Price of such
Securities shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 13) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Business Day prior to the Redemption Date, subject to payment of the above
54
amount as aforesaid. The Trustee shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it for purchase
and conversion in the same manner as it would moneys deposited with it by the
Company for the redemption of Securities. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as
set forth in this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense arising out
of or in connection with any such arrangement for the purchase and conversion
of any Securities between the Company and such purchasers, including the costs
and expenses incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 11.08. Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company pursuant to the
terms thereof as of July 12, 2003, July 12, 2008 and July 12, 2013 (each, a
"Purchase Date"), at the purchase price of $531.74 per $1,000 of Principal
Amount at Maturity as of July 12, 2003, $640.29 per $1,000 of Principal Amount
at Maturity as of July 12, 2008 and $771.00 per $1,000 of Principal Amount at
Maturity as of July 12, 2013 (each, a "Purchase Price", as applicable), at the
option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "Purchase Notice"), substantially in the form of Exhibit B
hereto, at any time from the opening of business on the date that is at
least 20 Business Days prior to a Purchase Date until the close of
business on such Purchase Date stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the Security
which the Holder will deliver to be purchased, which portion must be
in a Principal Amount at Maturity of $1,000 or integral multiples
thereof,
(C) that such Security shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in the Securities and
in this Indenture, and
(D) in the event the Company elects, pursuant to Section 11.08(b), to
pay the Purchase Price to be paid as of such Purchase Date, in whole
or in part, in shares of Common Stock but such portion of the
Purchase Price shall ultimately be payable to such Holder entirely in
cash because any of the conditions to payment of the Purchase Price
in Common Stock is not satisfied prior to the close of business on
such Purchase Date, as set forth in Section 11.08(d), whether such
Holder elects (i) to withdraw such Purchase Notice as to some or all
of the Securities to which such Purchase Notice relates (stating the
Principal Amount at Maturity and certificate
55
numbers of the Securities as to which such withdrawal shall relate),
or (ii) to receive cash in respect of the entire Purchase Price for
all Securities (or portions thereof) to which such Purchase Notice
relates; and
(2) delivery of such Security to the Paying Agent for cancellation prior
to, on or after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Purchase Price therefor;
provided, however, that such Purchase Price shall be so paid pursuant to
this Section 11.08 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related
Purchase Notice.
If a Holder, in such Holder's Purchase Notice, fails to indicate such
Holder's choice with respect to the election set forth in clause (D) of Section
11.08(a)(1), such Holder shall be deemed to have elected to receive cash in
respect of the Purchase Price for all Securities subject to such Purchase
Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 11.08, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000 if so requested by the
Holder. Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 11.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 11.08(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the Business Day prior to the Purchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section
11.10.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price. The
Securities to be purchased pursuant to Section 11.08(a) may be paid for, at the
election of the Company, in cash or Common Stock, or in any combination of cash
and Common Stock, subject to the conditions set forth in Sections 11.08(c) and
(d). The Company shall designate, in the Company Notice delivered pursuant to
Section 11.08(e), whether the Company will purchase the Securities for cash or
Common Stock, or, if a combination thereof, the percentages of the Purchase
Price of Securities in respect of which it will pay in cash or Common Stock;
provided that the Company will pay cash for fractional interests in Common
Stock. For purposes of determining the existence of potential fractional
interests, all Securities subject to purchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to
be presented). Each Holder whose Securities are purchased pursuant to this
56
Section 11.08 shall receive the same percentage of cash or Common Stock in
payment of the Purchase Price for such Securities, except (i) as provided in
Section 11.08(d) with regard to the payment of cash in lieu of fractional
shares of Common Stock and (ii) in the event that the Company is unable to
purchase the Securities of a Holder or Holders for Common Stock because any
necessary qualifications or registrations of the Common Stock under applicable
state securities laws cannot be obtained, the Company may purchase the
Securities of such Holder or Holders for cash. The Company may not change its
election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 11.08(b) or pursuant to Section
11.08(d) in the event of a failure to satisfy, prior to the close of business
on the Purchase Date, any condition to the payment of the Purchase Price, in
whole or in part, in Common Stock.
If the Company elects to pay all or part of the Purchase Price in Common
Stock, the portion of accrued Original Issue Discount (or interest if the
Company has exercised its option to convert the Securities into semi-annual
coupon notes) attributable to the period from the Issue Date (or, if the
Company has exercised the option to convert the Securities into semi-annual
coupon notes, the later of (x) the date of such exercise, and (y) the date on
which interest was last paid) through the Purchase Date with respect to the
surrendered Security shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with cash payment, if any, in lieu of
fractional shares) and cash, if any, in exchange for the Security being
purchased pursuant to the terms hereof; and such cash and the fair market value
of such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as delivered pro rata, to the extent
thereof, first in exchange for Original Issue Discount (or interest, if the
Company has exercised its option to convert the Securities into semi-annual
coupon notes) accrued through the Purchase Date, and the balance, if any, of
such cash and the fair market value of such Common Stock (and any such cash
payment) shall be treated as delivered in exchange for the Issue Price of the
Security being purchased pursuant to the provisions hereof.
At least three Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 11.08(e),
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner of
payment set forth in Section 11.08(d) have been or will be complied with,
and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 11.08(e).
(c) Purchase with Cash. On each Purchase Date, at the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 11.08(a) has been given, or a specified percentage thereof,
may be paid by the Company with cash equal to the aggregate Purchase Price of
such Securities.
57
(d) Payment by Issuance of Common Stock. On each Purchase Date, at the
option of the Company, the Purchase Price of Securities in respect of which a
Purchase Notice pursuant to Section 11.08(a) has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number of
shares of Common Stock equal to the quotient obtained by dividing (i) the
amount of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may be, of
the Purchase Price of such Securities in cash by (ii) the Market Price of a
share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in payment
of the Purchase Price. Instead the Company will pay cash for the current market
value of the fractional share. The current market value of a fraction of a
share shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
purchased.
The Company's right to exercise its election to purchase the Securities
pursuant to Section 11.08 through the issuance of shares of Common Stock shall
be conditioned upon:
(i) the Company's not having given its Company Notice of an election to
pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the Securities with Common
Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act or
the Exchange Act, in each case if required;
(iii) any necessary qualification or registration under applicable state
securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion
of Counsel, each stating that (A) the terms of the issuance of the Common
Stock are in conformity with this Indenture and (B) the shares of Common
Stock to be issued by the Company in payment of the Purchase Price in
respect of Securities have been duly authorized and, when issued and
delivered pursuant to the terms of this Indenture in payment of the
Purchase Price in respect of the Securities, will be validly issued, fully
paid and non-assessable and, to the best of such counsel's knowledge, free
from preemptive rights, and, in the case of such Officers' Certificate,
stating that conditions (i), (ii) and (iii) above and the condition set
forth in the second succeeding sentence have been satisfied and, in the
case of such Opinion of Counsel, stating that conditions (ii) and (iii)
above has been satisfied.
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Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Principal Amount at Maturity of
Securities and the Sale Price of a share of Common Stock on each trading day
during the period during which the Market Price is calculated. The Company may
pay the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation. If the foregoing conditions are not
satisfied with respect to a Holder or Holders prior to the close of business on
the Purchase Date and the Company has elected to purchase the Securities
pursuant to this Section 11.08 through the issuance of shares of Common Stock,
the Company shall pay the entire Purchase Price of the Securities of such
Holder or Holders in cash.
The "Market Price" means the average of the Sale Prices of the Common
Stock for the five trading day period ending on (if the third Business Day
prior to the applicable Purchase Date is a trading day, or if not, then on the
last trading day prior to) the third Business Day prior to the applicable
Purchase Date, appropriately adjusted to take into account the occurrence,
during the period commencing on the first of such trading days during such five
trading day period and ending on such Purchase Date, of any event described in
Section 13.06, 13.07 or 13.08; subject, however, to the conditions set forth in
Sections 13.09 and 13.10.
The "Sale Price" of the Common Stock on any date means the closing sale
price per share (or, if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the
average bid and average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System.
(e) Notice of Election. The Company's notice of election to pay the
Purchase Price with cash or Common Stock or any combination thereof shall be
sent to the Holders (and to beneficial owners as required by applicable law) in
the manner provided herein (the "Company Notice"). The Company Notice shall be
sent to Holders (and to beneficial owners as required by applicable law) not
less than 20 Business Days prior to such Purchase Date (the "Company Notice
Date"). The Company Notice shall state the manner of payment elected and shall
contain the following information:
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock in respect of the
specified percentage of the Purchase Price of the Securities held by such
Holder (except any cash amount to be paid in lieu of fractional shares);
(2) state that the total number of shares of Common Stock to be issued to
Holders will be equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may
be, of the Purchase Price of such Securities in cash by (ii) the Market
Price of a share of Common Stock;
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(3) set forth the method of calculating the Market Price of the Common
Stock; and
(4) state that because the Market Price of Common Stock will be determined
prior to the Purchase Date, Holders will bear the market risk with respect
to the value of the Common Stock to be received from the date such Market
Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase Notice
to be completed by a Securityholder and shall state:
(i) the Purchase Price and the Conversion Rate applicable on the Company
Notice Date;
(ii) the name and address of the Paying Agent and the Conversion Agent;
(iii) that Securities as to which a Purchase Notice has been given may be
converted pursuant to Article 13 hereof only if the applicable Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent for
cancellation to collect payment;
(v) that the Purchase Price for any security as to which a Purchase Notice
has been given and not withdrawn will be paid promptly following the later
of the Purchase Date and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 11.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 11.08(a)(1)(D) or Section 11.10);
(ix) that, unless the Company defaults in making payment of such Purchase
Price, Original Issue Discount on Securities covered by any Purchase
Notice, or interest, if any, will cease to accrue on and after the
Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
(f) Covenants of the Company. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly
60
authorized, validly issued, fully paid and nonassessable, and shall be free
from preemptive rights and free of any lien or adverse claim.
The Company shall use its best efforts to list or cause to have quoted any
shares of Common Stock to be issued to purchase Securities on each national
securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect of
a cash purchase under Section 11.08(c) or for fractional interests, as
applicable) or shares of Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 11.11, sufficient to pay
the aggregate Purchase Price of all Securities to be purchased pursuant to this
Section 11.08. As soon as practicable after the Purchase Date, the Company
shall deliver to each Holder entitled to receive Common Stock through the Stock
Transfer Agent, a certificate for the number of full shares of Common Stock
issuable in payment of the Purchase Price. The Person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record of shares of Common Stock on the Business Day following the Purchase
Date. Subject to Section 11.08(d), no payment or adjustment will be made for
dividends on any Common Stock delivered in payment of the Purchase Price the
record date for which occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on such
issue of shares of Common Stock. However, the Holder shall pay any such tax
which is due because the Holder requests the shares of Common Stock to be
issued in a name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum that the
Company deems to be sufficient to pay any tax which will be due because the
shares of Common Stock are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax withholding required by law or
regulations.
SECTION 11.09. Repurchase of Securities at Option of the Holder upon
Fundamental Change.
(a) General. If prior to July 12, 2003 there shall have occurred a
Fundamental Change, Securities shall be purchased by the Company, at a purchase
price specified in the Securities (the "Fundamental Change Repurchase Price"),
as of a date that is not less than 60 Business Days nor more than 90 Business
Days after the occurrence of the Fundamental Change (the "Fundamental Change
Repurchase Date"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "Fundamental Change Repurchase Notice"), substantially in the
form of Exhibit C hereto, at any time from the opening of business on the
date that is at least 20 Business Days prior to a Fundamental Change
Repurchase Date until the close of business on such Fundamental Change
Repurchase Date stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
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(B) the portion of the Principal Amount at Maturity of the Security
which the Holder will deliver to be purchased, which portion must be
in a Principal Amount at Maturity of $1,000 or integral multiples
thereof,
(C) that such Security shall be purchased as of the Fundamental
Change Repurchase Date pursuant to the terms and conditions specified
in the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section 11.09(b), to
pay the Fundamental Change Repurchase Price to be paid as of such
Fundamental Change Repurchase Date, in whole or in part, in shares of
Common Stock but such portion of the Fundamental Change Repurchase
Price shall ultimately be payable to such Holder entirely in cash
because any of the conditions to payment of the Fundamental Change
Repurchase Price in Common Stock is not satisfied prior to the close
of business on such Fundamental Change Repurchase Date, as set forth
in Section 11.09(d), whether such Holder elects (i) to withdraw such
Fundamental Change Repurchase Notice as to some or all of the
Securities to which such Fundamental Change Repurchase Notice relates
(stating the Principal Amount at Maturity and certificate numbers of
the Securities as to which such withdrawal shall relate), or (ii) to
receive cash in respect of the entire Fundamental Change Repurchase
Price for all Securities (or portions thereof) to which such
Fundamental Change Repurchase Notice relates; and
(2) delivery of such Security to the Paying Agent for cancellation prior
to, on or after the Fundamental Change Repurchase Date (together with all
necessary endorsements) at the offices of the Paying Agent, such delivery
being a condition to receipt by the Holder of the Fundamental Change
Repurchase Price therefor; provided, however, that such Fundamental Change
Repurchase Price shall be so paid pursuant to this Section 11.09 only if
the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Fundamental Change
Repurchase Notice.
If a Holder, in such Holder's Fundamental Change Repurchase Notice, fails
to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 11.09(a)(1), such Holder shall be deemed to have elected
to receive cash in respect of the Fundamental Change Repurchase Price for all
Securities subject to such Fundamental Change Repurchase Notice in the
circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 11.09, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000 if so requested by the
Holder. 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.
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Any purchase by the Company contemplated pursuant to the provisions of
this Section 11.09 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Fundamental
Change Repurchase Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Fundamental Change Repurchase Notice contemplated by this
Section 11.09(a) shall have the right to withdraw such Fundamental Change
Repurchase Notice at any time prior to the close of business on the Business
Day prior to the Fundamental Change Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 11.10.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof.
A "Fundamental Change" shall be deemed to have occurred at such time as
any of the following events shall occur:
(i) the Company consolidates or merges with another Person (other
than a Subsidiary);
(ii) the Company sells, conveys, transfers or leases its properties
and assets substantially as an entirety to any Person (other than a
Subsidiary);
(iii) any Person (other than a Subsidiary) consolidates with or
merges with or into the Company; or
(iv) the Company's Common Stock is reclassified into, exchanged for
or converted into the right to receive any other property or security;
provided, that none of these circumstances will be a Fundamental Change if
at least 50% of the aggregate fair market value (as determined by the Company's
Board of Directors) of such property and securities, other than cash payments
for fractional shares, consists of shares of voting Common Stock of the
surviving Person that are, or upon issuance will be, traded on the Xxxxxx,
Xxxxxxx or another internationally recognized securities exchange or a United
States national securities exchange or approved for trading on an established
over-the-counter trading market in the United States.
(b) Company's Right to Elect Manner of Payment of Fundamental Change
Repurchase Price. The Securities to be purchased pursuant to Section 11.09(a)
may be paid for, at the election of the Company, in cash or Common Stock, or in
any combination of cash and Common Stock, subject to the conditions set forth
in Sections 11.09(c) and (d). The Company shall designate, in the Fundamental
Change Company Notice delivered pursuant to Section 11.09(e), whether the
Company will purchase the Securities for cash or Common Stock, or, if a
combination thereof, the percentages of the Fundamental Change Repurchase Price
of Securities in respect of which it will pay in cash or Common Stock; provided
that the Company will pay cash for fractional interests in Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities subject to purchase by the Company held by a Holder
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shall be considered together (no matter how many separate certificates are to
be presented). Each Holder whose Securities are purchased pursuant to this
Section 11.09 shall receive the same percentage of cash or Common Stock in
payment of the Fundamental Change Repurchase Price for such Securities, except
(i) as provided in Section 11.09(d) with regard to the payment of cash in lieu
of fractional shares of Common Stock and (ii) in the event that the Company is
unable to purchase the Securities of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under
applicable state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Fundamental
Change Company Notice to Securityholders except pursuant to this Section
11.09(b) or pursuant to Section 11.09(d) in the event of a failure to satisfy,
prior to the close of business on the Fundamental Change Repurchase Date, any
condition to the payment of the Fundamental Change Repurchase Price, in whole
or in part, in Common Stock.
If the Company elects to pay all or part of the Fundamental Change
Repurchase Price in Common Stock, the portion of accrued Original Issue
Discount (or interest if the Company has exercised its option to convert the
Securities into semi-annual coupon notes) attributable to the period from the
Issue Date (or, if the Company has exercised the option to convert the
Securities into semi-annual coupon notes, the later of (x) the date of such
exercise, and (y) the date on which interest was last paid) through the
Fundamental Change Repurchase Date, as the case may be, with respect to the
surrendered Security shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with cash payment, if any, in lieu of
fractional shares) and cash, if any, in exchange for the Security being
purchased pursuant to the terms hereof; and such cash, if any, and the fair
market value of such shares of Common Stock (together with any such cash
payment in lieu of fractional shares) shall be treated as delivered pro rata,
to the extent thereof, first in exchange for Original Issue Discount (or
interest, if the Company has exercised its option to convert the Securities
into semi-annual coupon notes) accrued through the Fundamental Change
Repurchase Date, and the balance, if any, of such cash or the fair market value
of such Common Stock (and any such cash payment) shall be treated as delivered
in exchange for the Issue Price of the Security being purchased pursuant to the
provisions hereof.
At least three Business Days before the Fundamental Change Company Notice
Date (as defined below), the Company shall deliver an Officers' Certificate to
the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 11.09(e),
(iii) if the Company elects to pay the Fundamental Change Repurchase
Price, or a specified percentage thereof, in Common Stock, that the
conditions to such manner of payment set forth in Section 11.09(d) have
been or will be complied with, and
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(iv) whether the Company desires the Trustee to give the Fundamental
Change Company Notice required by Section 11.09(e).
(c) Purchase with Cash. On each Fundamental Change Repurchase Date, at the
option of the Company, the Fundamental Change Repurchase Price of Securities in
respect of which a Fundamental Change Repurchase Notice pursuant to Section
11.09(a) has been given, or a specified percentage thereof, may be paid by the
Company with cash equal to the aggregate Fundamental Change Repurchase Price of
such Securities.
(d) Payment by Issuance of Common Stock. On each Fundamental Change
Repurchase Date, at the option of the Company, the Fundamental Change
Repurchase Price of Securities in respect of which a Fundamental Change
Repurchase Notice pursuant to Section 11.09(a) has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number of
shares of Common Stock equal to the quotient obtained by dividing (i) the
amount of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may be, of
the Fundamental Change Repurchase Price of such Securities in cash by (ii)
0.975 times the Market Price of a share of Common Stock, subject to the next
succeeding paragraph.
The Company will not issue a fractional share of Common Stock in payment
of the Fundamental Change Repurchase Price. Instead the Company will pay cash
for the current market value of the fractional share. The current market value
of a fraction of a share shall be determined, to the nearest 1/1,000th of a
share, by multiplying the Market Price by such fraction and rounding the
product to the nearest whole cent. It is understood that if a Holder elects to
have more than one Security purchased, the number of shares of Common Stock
shall be based on the aggregate amount of Securities to be purchased.
The Company's right to exercise its election to purchase the Securities
pursuant to Section 11.09 through the issuance of shares of Common Stock shall
be conditioned upon:
(i) the Company's not having given its Fundamental Change Company Notice
of an election to pay entirely in cash and its giving of timely
Fundamental Change Company Notice of election to purchase all or a
specified percentage of the Securities with Common Stock as provided
herein;
(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Fundamental Change Repurchase Price under
the Securities Act or the Exchange Act, in each case if required;
(iii) any necessary qualification or registration under applicable state
securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion
of Counsel, each stating that (A) the terms of the issuance of the Common
Stock are in conformity with this Indenture and (B) the shares of Common
Stock to be issued by the Company in payment of the Fundamental Change
Repurchase Price in respect of Securities have been duly authorized and,
when issued and delivered
65
pursuant to the terms of this Indenture in payment of the Fundamental
Change Repurchase Price in respect of the Securities, will be validly
issued, fully paid and non-assessable and, to the best of such counsel's
knowledge, free from preemptive rights, and, in the case of such Officers'
Certificate, stating that conditions (i), (ii) and (iii) above and the
condition set forth in the second succeeding sentence have been satisfied
and, in the case of such Opinion of Counsel, stating that conditions (ii)
and (iii) above has been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Principal Amount at Maturity of
Securities and the Sale Price of a share of Common Stock on each trading day
during the period during which the Market Price is calculated. The Company may
pay the Fundamental Change Repurchase Price (or any portion thereof) in Common
Stock only if the information necessary to calculate the Market Price is
published in a daily newspaper of national circulation. If the foregoing
conditions are not satisfied with respect to a Holder or Holders prior to the
close of business on the Fundamental Change Repurchase Date and the Company has
elected to purchase the Securities pursuant to this Section 11.09 through the
issuance of shares of Common Stock, the Company shall pay the entire
Fundamental Change Repurchase Price of the Securities of such Holder or Holders
in cash.
(e) Notice of Fundamental Change and Company Election. Within 30 days
after the occurrence of a Fundamental Change, the Company shall mail a written
notice of Fundamental Change (the "Fundamental Change Company Notice") by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The Fundamental Change Company Notice shall
disclose the Company's election to repurchase with cash or Common Stock or any
combination thereof in the manner provided herein. The Fundamental Change
Company Notice shall be sent to Holders (and to beneficial owners as required
by applicable law) not less than 20 Business Days prior to such Fundamental
Change Repurchase Date (the "Fundamental Change Company Notice Date"). The
notice shall include a form of Fundamental Change Repurchase Notice to be
completed by the Securityholder and shall state:
(1) briefly, the events causing a Fundamental Change and the date of such
Fundamental Change;
(2) the date by which the Fundamental Change Repurchase Notice pursuant to
this Section 11.09 must be given;
(3) the Fundamental Change Repurchase Date;
(4) the Fundamental Change Repurchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Rate applicable on the Fundamental Change Company
Notice Date and any adjustments thereto;
66
(7) that Securities as to which a Fundamental Change Repurchase Notice has
been given may be converted pursuant to Article 13 hereof only if the
Fundamental Change Repurchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent for
cancellation to collect payment;
(9) that the Fundamental Change Repurchase Price for any Security as to
which a Fundamental Change Repurchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Fundamental
Change Repurchase Date and the time of surrender of such Security as
described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 11.09;
(11) briefly, the conversion rights of the Securities;
(12) the procedures for withdrawing a Fundamental Change Repurchase Notice
(including, without limitation, for a conditional withdrawal pursuant to
the terms of Section 11.09(a)(1)(D) or Section 11.10);
(13) that, unless the Company defaults in making payment of such
Fundamental Change Repurchase Price, Original Issue Discount on Securities
covered by any Fundamental Change Repurchase Notice, or interest, if any,
will cease to accrue on and after the Fundamental Change Repurchase Date;
and
(14) the CUSIP number of the Securities.
In the event the Company has elected to pay the Fundamental Change
Repurchase Price (or a specified percentage thereof) with Common Stock, the
Fundamental Change Company Notice also shall:
(1) state that each Holder will receive Common Stock in respect of the
specified percentage of the Fundamental Change Repurchase Price of the
Securities held by such Holder (except any cash amount to be paid in lieu
of fractional shares);
(2) state that the total number of shares of Common Stock to be issued to
Holders will be equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may
be, of the Fundamental Change Repurchase Price of such Securities in cash
by (ii) 0.975 times the Market Price of a share of Common Stock;
(3) set forth the method of calculating the Market Price of the Common
Stock; and
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(4) state that because the Market Price of Common Stock will be determined
prior to the Fundamental Change Repurchase Date, Holders will bear the
market risk with respect to the value of the Common Stock to be received
from the date such Market Price is determined to the Fundamental Change
Repurchase Date.
At the Company's request, the Trustee shall give such Fundamental Change
Company Notice in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Fundamental Change Company Notice
shall be prepared by the Company.
(f) Covenants of the Company. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable, and
shall be free from preemptive rights and free of any lien or adverse claim.
The Company shall use its best efforts to list or cause to have quoted any
shares of Common Stock to be issued to purchase Securities on each national
securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect of
a cash purchase under Section 11.09(c) or for fractional interests, as
applicable) or shares of Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 11.11, sufficient to pay
the aggregate Fundamental Change Repurchase Price of all Securities to be
purchased pursuant to this Section 11.09. As soon as practicable after the
Fundamental Change Repurchase Date, the Company shall deliver to each Holder
entitled to receive Common Stock through the Stock Transfer Agent, a
certificate for the number of full shares of Common Stock issuable in payment
of the Fundamental Change Repurchase Price. The Person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record of shares of Common Stock on the Business Day following the Fundamental
Change Repurchase Date. Subject to Section 11.09(d), no payment or adjustment
will be made for dividends on any Common Stock delivered in payment of the
Fundamental Change Repurchase Price the record date for which occurred on or
prior to the Fundamental Change Repurchase Date.
(h) Taxes. If a Holder of a Security is paid in Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on such
issue of shares of Common Stock. Nothing herein shall preclude any income tax
withholding required by law or regulations.
SECTION 11.10. Effect of Purchase Notice or Fundamental Change Repurchase
Notice. Upon receipt by the Paying Agent of the Purchase Notice or Fundamental
Change Repurchase Notice specified in Section 11.08(a) or Section 11.09(a), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Fundamental Change Repurchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Fundamental Change Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Purchase Price or Fundamental Change Repurchase Price, as
the case may be, with respect to such Security. Such Purchase Price or
Fundamental Change Repurchase Price shall be paid to such Holder, subject to
receipts of funds and/or securities by the Paying Agent, promptly following the
later of (x) the Purchase Date or the Fundamental Change
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Repurchase Date, as the case may be, with respect to such Security (provided
the conditions in Section 11.08(a) or Section 11.09(a), as applicable, have
been satisfied) and (y) the time of delivery of such Security to the Paying
Agent by the Holder thereof in the manner required by Section 11.08(a) or
Section 11.09(a), as applicable. Securities in respect of which a Purchase
Notice or Fundamental Change Repurchase Notice, as the case may be, has been
given by the Holder thereof may not be converted pursuant to Article 13 hereof
on or after the date of the delivery of such Purchase Notice or Fundamental
Change Repurchase Notice, as the case may be, unless such Purchase Notice or
Fundamental Change Repurchase Notice, as the case may be, has first been
validly withdrawn as specified in the following two paragraphs.
A Purchase Notice or Fundamental Change Repurchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Purchase Notice or
Fundamental Change Repurchase Notice, as the case may be, at any time prior to
the close of business on the Business Day prior to the Purchase Date or the
Fundamental Change Repurchase Date, as the case may be, specifying:
(1) the certificate number of the Security in respect of which such notice
of withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the Principal Amount at Maturity, if any, of such Security which
remains subject to the original Purchase Notice or Fundamental Change
Repurchase Notice, as the case may be, and which has been or will be
delivered for purchase or repurchase by the Company.
A written notice of withdrawal of a Purchase Notice or Fundamental Change
Repurchase Notice may be in the form set forth in the preceding paragraph or
may be in the form of (i) a conditional withdrawal contained in a Purchase
Notice or Fundamental Change Repurchase Notice pursuant to the terms of Section
11.08(a)(1)(D) or 11.09(a)(1)(D) or (ii) a conditional withdrawal containing
the information set forth in Section 11.08(a)(1)(D) or 11.09(a)(1)(D) and the
preceding paragraph and contained in a written notice of withdrawal delivered
to the Paying Agent as set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 11.08 or
11.09 (other than through the issuance of Common Stock in payment of the
Purchase Price, including cash in lieu of fractional shares) if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Purchase Notice or Fundamental Change
Repurchase Notice, as the case may be) and is continuing an Event of Default
(other than a default in the payment of the Purchase Price or Fundamental
Change Repurchase Price, as the case may be, with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any
Securities (x) with respect to which a Purchase Notice or Fundamental Change
Repurchase Notice, as the case may be, has been withdrawn in compliance with
this Indenture, or (y) held by it during the continuance of an Event of Default
(other than a
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default in the payment of the Purchase Price or Fundamental Change Repurchase
Price, as the case may be, with respect to such Securities) in which case, upon
such return, the Purchase Notice or Fundamental Change Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.
SECTION 11.11. Deposit of Purchase Price or Fundamental Change Repurchase
Price. Prior to 10:00 a.m. (local time in The City of New York) on the Business
Day following the Purchase Date or the Fundamental Change Repurchase Date, as
the case may be, the Company shall deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is
acting as the Paying Agent, shall segregate and hold in trust as provided
herein) an amount of money (in immediately available funds if deposited on such
Business Day) sufficient to pay the cash portion of the aggregate Purchase
Price or Fundamental Change Repurchase Price, as the case may be, of all the
Securities or portions thereof which are to be purchased as of the Purchase
Date or Fundamental Change Repurchase Date, as the case may be, and shall
instruct the Stock Transfer Agent to deliver the number of full shares of
Common Stock issuable in payment of the remaining portion of the aggregate
Purchase Price or Fundamental Change Repurchase Price, as the case may be. The
Company shall promptly notify the Trustee in writing of the amount of any
deposits of cash or deliveries of Common Stock made pursuant to this Section.
SECTION 11.12. Securities Purchased or Repurchased in Part. Any Security
which is to be purchased or repurchased only in part shall be surrendered at
the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount at Maturity equal to, and in exchange for, the portion of the Principal
Amount at Maturity of the Security so surrendered which is not purchased.
SECTION 11.13. Covenant to Comply With Securities Laws Upon Purchase or
Repurchase of Securities. In connection with any offer to purchase or
repurchase or purchase or repurchase of Securities under Section 11.08 or 11.09
hereof (provided that such offer or purchase or repurchase constitutes an
"issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), the Company shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights
and obligations under Sections 11.08 and 11.09 to be exercised in the time and
in the manner specified in Sections 11.08 and 11.09.
SECTION 11.14. Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Purchase Price or Fundamental Change Repurchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 11.11 exceeds the cash portion of
the aggregate Purchase Price or Fundamental Change Repurchase Price, as the
case may be, of
70
the Securities or portions thereof which the Company is obligated to purchase
as of the Purchase Date or Fundamental Change Repurchase Date, as the case may
be, then on the Business Day following the Purchase Date or Fundamental Change
Repurchase Date, as the case may be, the Trustee shall return any such excess
to the Company.
ARTICLE 12
SPECIAL TAX EVENT CONVERSION
SECTION 12.01. Optional Conversion to Semi-annual Coupon Note Upon Tax
Event. From and after (i) the date (the "Tax Event Date") of the occurrence of
a Tax Event and (ii) the date the Company exercises its option set forth in
this Section 12.01, whichever is later (the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 3.75% per annum on a restated principal amount per $1,000
original Principal Amount at Maturity (the "Restated Principal Amount") equal
to the Issue Price plus Original Issue Discount accrued through the Option
Exercise Date and shall be payable semi-annually on January 12 and July 12 of
each year (each an "Interest Payment Date") to holders of record at the close
of business on December 29 or June 28 (each a "Regular Record Date")
immediately preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date on which interest has been paid or, if no interest
has been paid, from the Option Exercise Date. Within 15 days of the occurrence
of a Tax Event, the Company shall deliver a written notice of such Tax Event by
facsimile and first-class mail to the Trustee and within 15 days of its
exercise of such option the Company shall deliver a written notice of the
Option Exercise Date by facsimile and first-class mail to the Trustee and by
first class mail to the Holders of the Securities. From and after the Option
Exercise Date, (i) the Company shall be obligated to pay at Stated Maturity, in
lieu of the Principal Amount at Maturity of a Security, the Restated Principal
Amount thereof and (ii) "Issue Price and accrued Original Issue Discount,"
"Issue Price plus Original Issue Discount" or similar words, as used herein,
shall mean Restated Principal Amount plus accrued and unpaid interest with
respect to any Security. Securities authenticated and delivered after the
Option Exercise Date may, and shall if required by the Trustee, bear a notation
in a form approved by the Trustee as to the conversion of the Securities to
semi-annual coupon notes.
SECTION 12.02. Payment of Interest; Interest Rights Preserved. (a)
Interest on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security is registered at the close of business on the Regular Record
Date for such interest at the office or agency of the Company maintained for
such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the Holder located
inside the United States, provided that with respect to any Holder, such Holder
shall have furnished to the Paying Agent all required wire payment instructions
no later than the related Regular Record Date, or if no such instructions have
been furnished, by check payable to such Holder. In the case of a permanent
Global Security, interest payable on any Interest Payment Date will be paid to
the Depositary, with respect to that portion of such permanent Global Security
held for its account by Cede &
71
Co. for the purpose of permitting such party to credit the interest received by
it in respect of such permanent Global Security to the accounts of the
beneficial owners thereof.
(b) Except as otherwise specified with respect to the Securities, any
interest on any Security that is payable, but is not punctually paid or duly
provided for, within 30 days following on any Interest Payment Date (herein
called "Defaulted Interest", which term shall include any accrued and unpaid
interest that has accrued on such defaulted amount in accordance with paragraph
1 of the Securities), shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, as its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities are registered at the close of
business on a date (the "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities at his address
as it appears on the list of Securityholders maintained pursuant to this
Indenture not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
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Subject to the foregoing provisions, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
ARTICLE 13
CONVERSION
SECTION 13.01. Conversion Privilege. A Holder of a Security may convert
such Security into Common Stock at any time during the period stated in the
Securities. The number of shares of Common Stock issuable upon conversion of a
Security per $1,000 of Principal Amount at Maturity thereof (the "Conversion
Rate") shall be that set forth in the Securities, subject to adjustment as
herein set forth.
A Holder may convert a portion of the Principal Amount at Maturity of a
Security if the portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.
"Average Quoted Price" means the average of the Sale Prices of the Common
Stock for the shorter of
(i) 30 consecutive trading days ending on the last full trading day prior
to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Quoted Price is
being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Quoted
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Quoted
Price is being calculated (excluding days within such period, if any,
which are not trading days), or
(iii) the period, if any, (x) commencing on the date next succeeding the
Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, warrants or options or (b) distribution, in each case, for which
an adjustment is required by the provisions of Section 13.06(4), 13.07 or
13.08 and (y) proceeding through the last full trading day prior to the
Time of Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Quoted Price is being
calculated (excluding days within such period, if any, which are not
trading days).
In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto), with
respect to a dividend, subdivision, combination or reclassification to which
Section 13.06(1), (2), (3) or (5) applies, occurs during the period applicable
for calculating "Average Quoted Price" pursuant to
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the definition in the preceding sentence, "Average Quoted Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such period.
"Time of Determination" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options
or a distribution, in each case, to which Section 13.07 or 13.08 applies and
(ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock is then listed or quoted.
SECTION 13.02. Conversion Procedure. To convert a Security a Holder must
satisfy the requirements set forth in the Securities. The date on which the
Holder satisfies all those requirements is the conversion date (the "Conversion
Date"). As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder, through the Conversion Agent, a certificate for the
number of full shares of Common Stock issuable upon the conversion and cash in
lieu of any fractional share determined pursuant to Section 13.03. The Person
in whose name the certificate is registered shall be treated as a stockholder
of record on and after the Conversion Date; provided, however, that no
surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; such conversion shall be at the Conversion Rate
in effect on the date that such Security shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed.
Upon conversion of a Security, such Person shall no longer be a Holder of such
Security and such Security shall be cancelled and no longer Outstanding.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 13. On conversion of a Security, that portion of accrued Original Issue
Discount (or interest, if the Company has exercised its option provided for in
Section 12.01) attributable to the period from the Issue Date (or, if the
Company has exercised the option provided for in Section 12.01, the later of
(x) the date of such exercise and (y) the date on which interest was last paid)
of the Security through the Conversion Date with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Security being converted pursuant to the provisions hereof;
and the fair market value of such shares of Common Stock (together with any
such cash payment in lieu of fractional shares) shall be treated as issued, to
the extent thereof, first in exchange for Original Issue Discount (or interest,
if the Company has exercised its option provided for in Section 12.01) accrued
through the Conversion Date, and the balance, if any, of such fair market value
of such Common Stock (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the Security being converted pursuant to the
provisions hereof.
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If the Holder converts more than one Security at the same time, the number
of shares of Common Stock issuable upon the conversion shall be based on the
total Principal Amount at Maturity of the Securities converted.
If the last day on which a Security may be converted is a Legal Holiday,
the Security may be surrendered on the next succeeding day that is not a Legal
Holiday.
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security in an authorized denomination equal in Principal Amount at Maturity to
the unconverted portion of the Security surrendered.
SECTION 13.03. Fractional Shares. The Company will not issue a fractional
share of Common Stock upon conversion of a Security. Instead, the Company will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share shall be determined, to the nearest
1/1,000th of a share, by multiplying the Average Quoted Price by the fractional
amount and rounding the product to the nearest whole cent.
SECTION 13.04. Taxes on Conversion. If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer tax due
on the issue of shares of Common Stock upon the conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to
be issued in a name other than the Holder's name. The Conversion Agent may
refuse to deliver the certificates representing the Common Stock being issued
in a name other than the Holder's name until the Conversion Agent receives a
sum that the Company deems to be sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
SECTION 13.05. Company to Provide Stock. The Company shall, prior to
issuance of any Securities under this Article 13, and from time to time as may
be necessary, reserve out of its authorized but unissued or treasury Common
Stock a sufficient number of shares of Common Stock to permit the conversion of
the Securities.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim.
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, if any, including the addition of any and all
restrictive legends that are required to appear on the face of the Common
Stock, and will list or cause to have quoted such shares of Common Stock on
each national securities exchange or in the over-the-counter market or such
other market on which the Common Stock is then listed or quoted.
SECTION 13.06. Adjustment for Change In Capital Stock. If, after the Issue
Date of the Securities, the Company:
75
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
(4) pays a dividend or makes a distribution on its Common Stock in shares
of its Capital Stock (other than Common Stock or rights, warrants or
options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the Conversion Rate in effect immediately prior to such action shall
be adjusted so that the Holder of a Security thereafter converted may receive
the number of shares of Capital Stock of the Company which such Holder would
have owned immediately following such action if such Holder had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock
as is contemplated by this Article 13 with respect to the Common Stock, on
terms comparable to those applicable to Common Stock in this Article 13.
SECTION 13.07. Adjustment for Rights Issue. If after the Issue Date of the
Securities, the Company distributes any rights, warrants or options to all
holders of its Common Stock entitling them, for a period expiring within 60
days after the record date for such distribution, to subscribe for or purchase
shares of Common Stock at a price per share less than the Sale Price as of the
Time of Determination, the Conversion Rate shall be adjusted, subject to the
provisions of the last paragraph of this Section 13.07, in accordance with the
formula
R' = R x (O + N)
------------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
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O = the number of shares of Common Stock outstanding on the record date
for the distribution to which this Section 13.07 is being applied.
N = the number of additional shares of Common Stock offered pursuant to
the distribution.
P = the offering price per share of the additional shares.
M = the Average Quoted Price, minus, in the case of (i) a distribution to
which Section 13.06(4) applies or (ii) a distribution to which Section 13.08
applies, for which, in each case, (x) the record date shall occur on or before
the record date for the distribution to which this Section 13.07 applies and
(y) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 13.07 applies, the
fair market value (on the record date for the distribution to which this
Section 13.07 applies) of the
(1) Capital Stock of the Company distributed in respect of each share
of Common Stock in such Section 13.06(4) distribution and
(2) assets of the Company or debt securities or any rights, warrants
or options to purchase securities of the Company distributed in
respect of each share of Common Stock in such Section 13.08
distribution.
The Board of Directors shall determine fair market values for the purposes
of this Section 13.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 13.07 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when
such rights, warrants or options expire, then the Conversion Rate shall
promptly be readjusted to the Conversion Rate which would then be in effect had
the adjustment upon the issuance of such rights, warrants or options been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 13.07 if the application of
the formula stated above in this Section 13.07 would result in a value of R'
that is equal to or less than the value of R.
SECTION 13.08. Adjustment for Other Distributions. If, after the Issue
Date of the Securities, the Company distributes to all holders of its Common
Stock any of its assets, or debt securities or any rights, warrants or options
to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 13.06 and
distributions of rights, warrants or options referred to in Section 13.07 and
(y) cash dividends or other cash distributions that are paid out of
consolidated current net earnings or earnings retained in the business as shown
on the books of the Company unless such cash dividends or other cash
distributions are Extraordinary Cash Dividends) the Conversion Rate shall be
adjusted, subject to the provisions of the last paragraph of this Section
13.08, in accordance with the formula:
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R' = R x M
-----
M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Quoted Price, minus, in the case of a distribution to
which Section 11.06(4) applies, for which (i) the record date shall occur on or
before the record date for the distribution to which this Section 13.08 applies
and (ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 13.08 applies, the
fair market value (on the record date for the distribution to which this
Section 13.08 applies) of any Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section 13.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 13.08 applies) of the assets, securities, rights, warrants
or options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 13.08 is being applied (including, in the
case of cash dividends or other cash distributions giving rise to an
adjustment, all such cash distributed concurrently).
The Board of Directors shall determine fair market values for the purposes
of this Section 13.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 13.08 applies.
For purposes of this Section 13.08, the term "Extraordinary Cash Dividend"
shall mean any cash dividend with respect to the Common Stock the amount of
which, together with the aggregate amount of cash dividends on the Common Stock
to be aggregated with such cash dividend in accordance with the provisions of
this paragraph, equals or exceeds the threshold percentage set forth in item
(i) below. For purposes of item (i) below, the "Measurement Period" with
respect to a cash dividend on the Common Stock shall mean the 365 consecutive
day period ending on the date prior to the Ex-Dividend Time with respect to
such cash dividend, and the "Relevant Cash Dividends" with respect to a cash
dividend on the Common Stock shall mean the cash dividends on the Common Stock
with Ex-Dividend Times occurring in the Measurement Period.
(i) If, upon the date prior to the Ex-Dividend Time with respect a cash
dividend on the Common Stock, the aggregate amount of such cash dividend
together with the amounts of all Relevant Cash Dividends equals or exceeds
on a per share basis 10% of the Sale Price of the Common Stock on the last
trading day preceding the date of declaration by the Board of Directors of
the cash dividend with respect to which this provision is being applied,
then such cash dividend
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together with all Relevant Cash Dividends, shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 13.08, the value of "F" shall be equal to (y)
the aggregate amount of such cash dividend together with the amount of all
Relevant Cash Dividends, minus (z) the aggregate amount of all Relevant
Cash Dividends for which a prior adjustment in the Conversion Rate was
previously made under this Section 13.08.
In making the determinations required by item (i) above, the amount of
cash dividends paid on a per share basis and the amount of any Relevant
Cash Dividends specified in item (i) above, shall be appropriately
adjusted to reflect the occurrence during such period of any event
described in Section 13.06.
In the event that, with respect to any distribution to which this Section
13.08 would otherwise apply, the difference "M-F" as defined in the above
formula is less than $1.00 or "F" is equal to or greater than "M", then the
adjustment provided by this Section 13.08 shall not be made and in lieu thereof
the provisions of Section 13.14 shall apply to such distribution.
SECTION 13.09. When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 13 shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be.
SECTION 13.10. When No Adjustment Required. No adjustment need be made for
a transaction referred to in Section 13.06, 13.07, 13.08 or 13.14 if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. Such participation by Securityholders may include
participation upon conversion provided that an adjustment shall be made at such
time as the Securityholders are no longer entitled to participate.
No adjustment need be made for rights to purchase Common Stock pursuant to
a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value
of the Common Stock.
To the extent the Securities become convertible pursuant to this Article
13 into cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
SECTION 13.11. Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment
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is correct. Neither the Trustee nor any Conversion Agent shall be under any
duty or responsibility with respect to any such certificate except to exhibit
the same to any Holder desiring inspection thereof.
SECTION 13.12. Voluntary Increase. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and
file with the Trustee and the Conversion Agent a notice of the increase. The
Company shall mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased Conversion
Rate and the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 13.06, 13.07 or
13.08.
SECTION 13.13. Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 13.06, 13.07 or 13.08 (unless no
adjustment is to occur pursuant to Section 13.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 13.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and
the Conversion Agent a notice stating the proposed record date for a dividend
or distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.
SECTION 13.14. Reorganization of Company; Special Distributions. If the
Company is a party to a transaction subject to Section 8.01 (other than a sale
of all or substantially all of the assets of the Company in a transaction in
which the holders of Common Stock immediately prior to such transaction do not
receive securities, cash or other assets of the Company or any other Person) or
a merger or binding share exchange which reclassifies or changes its
outstanding Common Stock, the Person obligated to deliver securities, cash or
other assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of
Securities is an Affiliate of the successor Company, that issuer shall join in
the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which
such Holder would have received immediately after the consolidation, merger,
binding share exchange or transfer if such Holder had converted the Security
immediately before the effective date of the transaction, assuming (to the
extent applicable) that such Holder (i) was not a constituent Person or an
Affiliate of a constituent Person to such transaction; (ii) made no election
with respect thereto;
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and (iii) was treated alike with the plurality of non-electing Holders. The
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Article
13. The successor Company shall mail to Securityholders a notice briefly
describing the supplemental indenture.
If this Section applies, neither Section 13.06 nor Section 13.07 applies.
If the Company makes a distribution to all holders of its Common Stock of
any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of the last
paragraph of Section 13.08, would otherwise result in an adjustment in the
Conversion Rate pursuant to the provisions of Section 13.08, then, from and
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other
assets comprising the distribution that such Holder would have received if such
Holder had converted the Security immediately prior to the record date for
determining the holders of Common Stock entitled to receive the distribution.
SECTION 13.15. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to Section 13.03, 13.06,
13.07, 13.08, 13.09, 13.10, 13.14 or 13.17 is conclusive.
SECTION 13.16. Trustee's Adjustment Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article 13 should be made, how it
should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 13.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 13. Each Conversion Agent shall have the same protection under this
Section 13.16 as the Trustee.
SECTION 13.17. Simultaneous Adjustments. In the event that this Article 13
requires adjustments to the Conversion Rate under more than one of Sections
13.06(4), 13.07 or 13.08, and the record dates for the distributions giving
rise to such adjustments shall occur on the same date, then such adjustments
shall be made by applying, first, the provisions of Section 13.06, second, the
provisions of Section 13.08 and, third, the provisions of Section 13.07.
SECTION 13.18. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article 13, any subsequent event requiring an
adjustment under this Article 13 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 13.19. Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 13 shall be entitled to receive the appropriate number
of common stock or preferred stock purchase rights, as the case may be (the
"Rights"), if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as may
81
be provided by the terms of any shareholder rights agreement adopted by the
Company, as the same may be amended from time to time (in each case, a "Rights
Agreement"). Provided that such Rights Agreement requires that each share of
Common Stock issued upon conversion of Securities at any time prior to the
distribution of separate certificates representing the Rights be entitled to
receive such Rights, then, notwithstanding anything else to the contrary in
this Article 13, there shall not be any adjustment to the Conversion Rate as a
result of the issuance of Rights, the distribution of separate certificates
representing the Rights, the exercise or redemption of such Rights in
accordance with any such Rights Agreement, or the termination or invalidation
of such Rights.
-----------------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
AVON PRODUCTS, INC.
By /s/ Xxxxxx Xxxx
-------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By /s/ Xxxxxxxx Xxxxx
-------------------------------
83
EXHIBIT A
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------------, ----
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Market Fiduciary Services
Re: Avon Products, Inc. (the Company")
Zero Coupon Convertible Senior Notes due 2020 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate Principal Amount
at Maturity of the Notes, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, we represent that:
1. the offer of the Notes was not made to a Person in the United
States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any Person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
3. no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
5. We have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party, in any administrative or
A-1
legal proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By
-------------------------------
Authorized Signature
A-2
EXHIBIT B
Form of Purchase Notice
---------------, ----
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Market Fiduciary Services
Re: Avon Products, Inc. (the "Company")
Zero Coupon Convertible Senior Notes due 2020
This is a Purchase Notice as defined in Section 11.08 of the Indenture
dated as of July 12, 2000 (the "Indenture") between the Company and The Chase
Manhattan Bank, as Trustee. Terms used but not defined herein shall have the
meanings ascribed to them in the Indenture.
Certificate No(s). of Securities: _____________________________
I intend to deliver the following aggregate Principal Amount of Maturity of
Securities for purchase by the Company pursuant to Section 11.08 of the
Indenture (in multiples of $1,000):
$_____________________________
I hereby agree that the Securities will be purchased as of the Purchase
Date pursuant to the terms and conditions thereof and of the Indenture.
In the event that the Company elects, pursuant to Section 11.08(b) of the
Indenture, to pay the Purchase Price, in whole or in part, in shares of Common
Stock but such portion of the Purchase Price is ultimately payable entirely in
cash because any of the conditions to payment of the Purchase Price in Common
Stock is not satisfied prior to the close of business on the Purchase Date, I
elect (check one):
[ ] (1) to withdraw this Purchase Notice as to all of the Securities to which
it relates;
[ ] (2) to withdraw this Purchase Notice as to $___________________ Principal
Amount of Securities (Certificate No(s). ____________________); or
[ ] (3) to receive cash in respect of the entire Purchase Price for all
Securities or portions thereof to which this Purchase Notice relates.
Signed: ________________________
X-0
XXXXXXX X
Xxxx xx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Notice
---------------, ----
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Market Fiduciary Services
Re: Avon Products, Inc. (the "Company")
Zero Coupon Convertible Senior Notes due 2020
This is a Fundamental Change Repurchase Notice as defined in Section 11.09
of the Indenture dated as of July 12, 2000 (the "Indenture") between the
Company and The Chase Manhattan Bank, as Trustee. Terms used but not defined
herein shall have the meanings ascribed to them in the Indenture.
Certificate No(s). of Securities: _____________________________
I intend to deliver the following aggregate Principal Amount of Maturity of
Securities for purchase by the Company pursuant to Section 11.09 of the
Indenture (in multiples of $1,000):
$________________________________
I hereby agree that the Securities will be purchased as of the Fundamental
Change Repurchase Date pursuant to the terms and conditions thereof and of the
Indenture.
In the event that the Company elects, pursuant to Section 11.09(b) of the
Indenture, to pay the Fundamental Change Repurchase Price, in whole or in part,
in shares of Common Stock but such portion of the Fundamental Change Repurchase
Price is ultimately payable entirely in cash because any of the conditions to
payment of the Fundamental Change Repurchase Price in Common Stock is not
satisfied prior to the close of business on the Fundamental Change Repurchase
Date, I elect (check one):
[ ] (1) to withdraw this Fundamental Change Repurchase Notice as to all of the
Securities to which it ;
[ ] (2) to withdraw this Fundamental Change Repurchase Notice as to
$___________________ Principal Amount of Securities (Certificate No(s).
____________________); or
C-1
[ ] (3) to receive cash in respect of the entire Fundamental Change Repurchase
Price for all Securities or portions thereof to which this Fundamental Change
Repurchase Notice relates.
Signed: ________________________
C-2
TABLE OF CONTENTS
-----------------
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions .............................................. 1
Section 1.02. Compliance Certificates and Opinions...................... 9
Section 1.03. Form of Documents Delivered to Trustee ................... 9
Section 1.04. Acts of Holders; Record Dates ............................ 10
Section 1.05. Notices, Etc., to Trustee and Company .................... 11
Section 1.06. Notice to Holders; Waiver ................................ 11
Section 1.07. Conflict with Trust Indenture Act ........................ 11
Section 1.08. Effect of Headings and Table of Contents ................. 11
Section 1.09. Successors and Assigns ................................... 12
Section 1.10. Separability Clause ...................................... 12
Section 1.11. Benefits of Indenture .................................... 12
Section 1.12. Governing Law ............................................ 12
Section 1.13. Legal Holiday ............................................ 12
ARTICLE 2
SECURITY FORMS
Section 2.01. Forms Generally .......................................... 12
Section 2.02. Form of Face of Security ................................. 13
Section 2.03. Form of Reverse of Security .............................. 15
Section 2.04. Form of Trustee's Certificate of Authentication .......... 26
Section 2.05. Legend on Restricted Securities .......................... 26
i
ARTICLE 3
THE SECURITIES
Section 3.01. Title and Terms .......................................... 26
Section 3.02. Denominations ............................................ 27
Section 3.03. Execution, Authentication, Delivery and Dating ........... 27
Section 3.04. Temporary Securities ..................................... 27
Section 3.05. Registration; Registration of Transfer and
Exchange; Restrictions on Transfer ....................... 28
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities ......... 30
Section 3.07. Persons Deemed Owners .................................... 30
Section 3.08. Book-entry Provisions for Global Securities .............. 30
Section 3.09. Cancellation ............................................. 32
Section 3.10. Special Transfer Provisions .............................. 32
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture .................. 34
Section 4.02. Application of Trust Money ............................... 34
ARTICLE 5
REMEDIES
Section 5.01. Events of Default ........................................ 35
Section 5.02. Acceleration of Maturity; Rescission and Annulment ....... 36
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee .................................................. 37
Section 5.04. Trustee May File Proofs of Claim ......................... 37
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities ............................................... 38
Section 5.06. Application of Money Collected ........................... 38
Section 5.07. Limitation on Suits ...................................... 38
ii
Section 5.08. Unconditional Right of Holders to Receive Payment ........ 39
Section 5.09. Restoration of Rights and Remedies ....................... 39
Section 5.10. Rights and Remedies Cumulative ........................... 39
Section 5.11. Delay or Omission Not Waiver ............................. 39
Section 5.12. Control by Holders ....................................... 39
Section 5.13. Waiver of Past Defaults .................................. 40
Section 5.14. Undertaking for Costs .................................... 40
Section 5.15. Waiver of Stay or Extension Laws ......................... 40
ARTICLE 6
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities ...................... 41
Section 6.02. Notice of Defaults ....................................... 41
Section 6.03. Certain Rights of Trustee ................................ 41
Section 6.04. Not Responsible for Recitals ............................. 42
Section 6.05. May Hold Securities ...................................... 42
Section 6.06. Money Held in Trust ...................................... 42
Section 6.07. Compensation and Reimbursement ........................... 42
Section 6.08. Disqualification; Conflicting Interests .................. 43
Section 6.09. Corporate Trustee Required; Eligibility .................. 43
Section 6.10. Resignation and Removal; Appointment of
Successor ................................................ 43
Section 6.11. Acceptance of Appointment by Successor ................... 45
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business ................................................. 45
Section 6.13. Preferential Collection of Claims Against ................ 45
iii
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders .................................................. 45
Section 7.02. Preservation of Information; Communications to Holders ... 46
Section 7.03. Reports by Trustee ....................................... 46
Section 7.04. Reports by Company ....................................... 46
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms ..... 47
Section 8.02. Successor Substituted .................................... 47
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders ....... 48
Section 9.02. Supplemental Indentures with Consent of Holders .......... 48
Section 9.03. Execution of Supplemental Indentures ..................... 49
Section 9.04. Effect of Supplemental Indentures ........................ 49
Section 9.05. Conformity with Trust Indenture Act ...................... 49
Section 9.06. Reference in Securities to Supplemental
Indentures ............................................... 49
ARTICLE 10
COVENANTS
Section 10.01. Payments ................................................. 50
Section 10.02. Maintenance of Office or Agency .......................... 50
Section 10.03. Money for Security Payments to Be Held in Trust .......... 50
Section 10.04. Statement by Officers as to Default ...................... 51
Section 10.05. Existence ................................................ 51
iv
Section 10.06. Reports and Delivery of Certain Information .............. 51
Section 10.07. Resale of Certain Securities ............................. 52
Section 10.08. Book-Entry System ........................................ 52
Section 10.09. Calculation of Original Issue Discount ................... 52
ARTICLE 11
REDEMPTION AND PURCHASES
Section 11.01. Right to Redeem; Notices to Trustee ...................... 52
Section 11.02. Selection of Securities to Be Redeemed ................... 53
Section 11.03. Notice of Redemption ..................................... 53
Section 11.04. Effect of Notice of Redemption ........................... 54
Section 11.05. Deposit of Redemption Price............................... 54
Section 11.06. Securities Redeemed in Part............................... 54
Section 11.07. Conversion Arrangement on Call for Redemption............. 54
Section 11.08. Purchase of Securities at Option of the Holder............ 55
Section 11.09. Repurchase of Securities at Option of the Holder
upon Fundamental Change................................... 61
Section 11.10. Effect of Purchase Notice or Fundamental Change
Repurchase Notice......................................... 68
Section 11.11. Deposit of Purchase Price or Fundamental Change
Repurchase Price.......................................... 70
Section 11.12. Securities Purchased or Repurschased in Part.............. 70
Section 11.13. Covenant to Comply With Securities Laws Upon Purchase
or Repurchase of Securities............................... 70
Section 11.14. Repayment to the Company.................................. 70
ARTICLE 12
SPECIAL TAX EVENT CONVERSION
Section 12.01. Optional Conversion to Semi-annual Coupon Note Upon Tax
Event..................................................... 71
Section 12.02. Payment of Interest; Interest Rights Preserved............ 71
v
ARTICLE 13
CONVERSION
Section 13.01. Conversion Privilege....................................... 73
Section 13.02. Conversion Procedure....................................... 74
Section 13.03. Fractional Shares.......................................... 75
Section 13.04. Taxes on Conversion........................................ 75
Section 13.05. Company to Provide Stock................................... 75
Section 13.06. Adjustment for Change In Capital Stock..................... 75
Section 13.07. Adjustment for Rights Issue................................ 76
Section 13.08. Adjustment for Other Distributions......................... 77
Section 13.09. When Adjustment May Be Deferred............................ 79
Section 13.10. When No Adjustment Required................................ 79
Section 13.11. Notice of Adjustment....................................... 79
Section 13.12. Voluntary Increase......................................... 80
Section 13.13. Notice of Certain Transactions............................. 80
Section 13.14. Reorganization of Company; Special Distributions........... 80
Section 13.15. Company Determination Final................................ 81
Section 13.16. Trustee's Adjustment Disclaimer............................ 81
Section 13.17. Simultaneous Adjustments................................... 81
Section 13.18. Successive Adjustments..................................... 81
Section 13.19. Rights Issued in Respect of Common Stock Issued Upon
Conversion................................................. 81
Exhibit A - Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit B - Form of Purchase Notice
Exhibit C - Form of Fundamental Change Repurchase Notice
vi
-------------------------------------------------------------------------------
AVON PRODUCTS, INC.
as Issuer
AND
THE CHASE MANHATTAN BANK
as Trustee
--------------------
Indenture
Dated as of July 12, 2000
-------------------
$735,820,000 Principal Amount at Maturity
Zero Coupon Convertible Senior Notes due 2020
-------------------------------------------------------------------------------
.....................................
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
----------- -------
ss.310(a)(1) ..................................... 6.09
(a)(2) ..................................... 6.09
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 6.08
6.10
ss.311(a) ..................................... 6.13
(b) ..................................... 6.13
ss.312(a) ..................................... 7.01
7.02(a)
(b) ..................................... 7.02(b)
(c) ..................................... 7.02(c)
ss.313(a) ..................................... 7.03(a)
(b) ..................................... 7.03(a)
(c) ..................................... 7.03(a)
(d) ..................................... 7.03(b)
ss.314(a) ..................................... 7.04
(b) ..................................... Not Applicable
(c)(1) ..................................... 1.02
(c)(2) ..................................... 1.02
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.02
ss.315(a) ..................................... 6.01
(b) ..................................... 6.02
(c) ..................................... 6.01
(d) ..................................... 6.01
(e) ..................................... 5.14
ss.316(a)(1)(A) ..................................... 5.12
(a)(1)(B) ..................................... 5.13
(a)(2) ..................................... Not Applicable
(b) ..................................... 5.08
(c) ..................................... 1.04(c)
i
Trust Indenture Indenture
Act Section Section
----------- -------
ss.317(a)(1) ..................................... 5.03
(a)(2) ..................................... 5.04
(b) ..................................... 10.03
ss.318(a) ..................................... 1.07
---------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
ii
