EXHIBIT 4.1
EXECUTION COPY
================================================================================
OMI CORPORATION
2.875% CONVERTIBLE SENIOR NOTES DUE 2024
---------------------
INDENTURE
DATED AS OF DECEMBER 7, 2004
---------------------
HSBC BANK USA, NATIONAL ASSOCIATION
TRUSTEE
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture*
Trust Indenture Act Indenture Section
Section
310(a)(1) Section 7.09
310(a)(2) Section 7.09
310(b) Section 7.07
311(a) Section 7.10
311(b) Section 7.10
312(a) Section 2.05
312(b) Section 11.03
312(c) Section 11.03
313(a) Section 7.05
313(b) Section 7.05
313(d) Section 7.05
314(a) Section 4.02
314(c) Section 11.04
314(e) Section 11.05
315(a) Section 7.01
315(b) Section 6.01
315(c) Section 7.01
315(e) Section 6.11
316(a) Section 6.04, Section 6.05
316(b) Section 6.07
316(c) Section 1.04
317(a) Section 6.08
317(b) Section 7.01
* This Cross Reference Table shall not, for any purpose, be deemed to be part of
the Indenture.
i
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions................................................................................1
Section 1.02 Incorporation by Reference of Trust Indenture Act..........................................9
Section 1.03 Rules of Construction......................................................................9
Section 1.04 Acts of Holders............................................................................9
ARTICLE 2
THE SECURITIES
Section 2.01 Title, Form and Dating....................................................................10
Section 2.02 Execution and Authentication..............................................................11
Section 2.03 Registrar, Paying Agent and Conversion Agent..............................................12
Section 2.04 Paying Agent to Hold Money and Securities in Trust........................................12
Section 2.05 Securityholder Lists......................................................................13
Section 2.06 Transfer and Exchange.....................................................................13
Section 2.07 Replacement Securities....................................................................14
Section 2.08 Outstanding Securities; Determinations of Holders' Action.................................15
Section 2.09 Temporary Securities......................................................................16
Section 2.10 Cancellation..............................................................................16
Section 2.11 Persons Deemed Owners.....................................................................16
Section 2.12 Global Securities.........................................................................17
Section 2.13 CUSIP Numbers.............................................................................21
ARTICLE 3
REDEMPTION AND REPURCHASES
Section 3.01 Company's Right to Redeem; Notices to Trustee.............................................21
Section 3.02 Selection of Securities to Be Redeemed....................................................22
Section 3.03 Redemption Notice.........................................................................22
Section 3.04 Effect of Redemption Notice...............................................................23
Section 3.05 Deposit of Redemption Price...............................................................23
Section 3.06 Securities Redeemed in Part...............................................................23
Section 3.07 Repurchase of Securities by the Company at Option of the Holder...........................24
Section 3.08 Repurchase of Securities at Option of the Holder Upon a Designated Event..................26
Section 3.09 Effect of Repurchase Notice or Designated Event Repurchase Notice.........................28
Section 3.10 Deposit of Repurchase Price or Designated Event Repurchase Price..........................29
Section 3.11 Securities Purchased in Part..............................................................29
Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of Securities.......................30
i
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities.....................................................................30
Section 4.02 SEC and Other Reports.....................................................................30
Section 4.03 Compliance Certificate....................................................................30
Section 4.04 Further Instruments and Acts..............................................................31
Section 4.05 Maintenance of Office or Agency...........................................................31
Section 4.06 Delivery of Certain Information...........................................................31
Section 4.07 Liquidated Damages Notice.................................................................31
ARTICLE 5
SUCCESSOR PERSON
Section 5.01 When Company May Merge or Transfer Assets.................................................32
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.........................................................................33
Section 6.02 Acceleration..............................................................................35
Section 6.03 Other Remedies............................................................................35
Section 6.04 Waiver of Past Defaults...................................................................36
Section 6.05 Control by Majority.......................................................................36
Section 6.06 Limitation on Suits.......................................................................36
Section 6.07 Rights of Holders to Receive Payment......................................................37
Section 6.08 Collection Suit by Trustee................................................................37
Section 6.09 Trustee May File Proofs of Claim..........................................................37
Section 6.10 Priorities................................................................................37
Section 6.11 Undertaking for Costs.....................................................................38
Section 6.12 Waiver of Stay, Extension or Usury Laws...................................................38
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.........................................................................38
Section 7.02 Rights of Trustee.........................................................................40
Section 7.03 Individual Rights of Trustee..............................................................41
Section 7.04 Trustee's Disclaimer......................................................................41
Section 7.05 Reports by Trustee to Holders.............................................................41
Section 7.06 Compensation and Indemnity................................................................42
Section 7.07 Replacement of Trustee....................................................................42
Section 7.08 Successor Trustee by Merger...............................................................43
Section 7.09 Eligibility; Disqualification.............................................................43
Section 7.10 Preferential Collection of Claims Against Company.........................................43
ii
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 Discharge of Liability on Securities......................................................44
Section 8.02 Repayment to the Company..................................................................44
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders................................................................44
Section 9.02 With Consent of Holders...................................................................45
Section 9.03 Compliance with Trust Indenture Act.......................................................46
Section 9.04 Revocation and Effect of Consents, Waivers and Actions....................................46
Section 9.05 Notation on or Exchange of Securities.....................................................46
Section 9.06 Trustee to Sign Supplemental Indentures...................................................46
Section 9.07 Effect of Supplemental Indentures.........................................................47
ARTICLE 10
CONVERSIONS
Section 10.01 Conversion Privilege......................................................................47
Section 10.02 Payment Upon Conversion...................................................................50
Section 10.03 Exercise of Conversion Privilege; Issuance of Common Stock on Conversion; No
Adjustment for Interest or Dividends......................................................51
Section 10.04 Adjustment of Conversion Rate.............................................................53
Section 10.05 Effect of Reclassification, Consolidation, Merger or Sale.................................60
Section 10.06 Taxes on Shares Issued....................................................................61
Section 10.07 Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.....................................................61
Section 10.08 Responsibility of Trustee.................................................................62
Section 10.09 Notice to Holders Prior to Certain Actions................................................62
Section 10.10 Rights Issued in Respect of Common Stock Issued Upon Conversion...........................63
Section 10.11 Unconditional Right of Holders to Convert.................................................63
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls..............................................................63
Section 11.02 Notices...................................................................................63
Section 11.03 Communication by Holders With Other Holders...............................................64
Section 11.04 Certificate and Opinion as to Conditions Precedent........................................64
Section 11.05 Statements Required in Certificate or Opinion.............................................65
Section 11.06 Separability Clause.......................................................................65
Section 11.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar............................65
Section 11.08 Legal Holidays............................................................................65
Section 11.09 GOVERNING LAW.............................................................................65
Section 11.10 No Recourse Against Others................................................................65
Section 11.11 Successors................................................................................65
Section 11.12 Multiple Originals........................................................................66
iii
INDENTURE dated as of December 7, 2004 between OMI Corporation, a
Xxxxxxxx Islands corporation (the "COMPANY"), and HSBC Bank USA, National
Association, a national banking association duly organized under the laws of the
United States of America, as Trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 2.875% Convertible
Senior Notes due 2024:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS. "144A GLOBAL SECURITY" means a permanent
Global Security in the form of the Security attached hereto as EXHIBIT A, and
that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.
"ACCEPTED PURCHASED SHARES" shall have the meaning set forth in Section
10.04(g).
"ADDITIONAL SHARES" shall have the meaning set forth in Section
10.01(d).
"ADJUSTMENT EVENT" shall have the meaning set forth in Section
10.04(k).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"AGENT MEMBERS" shall have the meaning set forth in Section 2.12(e).
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of such board.
"BOARD RESOLUTION" means a resolution of the Board of Directors.
"BUSINESS DAY" means, with respect to any Security, a day, other than a
Saturday or Sunday, that in The City of New York, is not a day on which banking
institutions are authorized by law or regulation to close.
"CAPITAL STOCK" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CASH SETTLEMENT NOTICE PERIOD" shall have the meaning set forth in
Section 10.02(a).
"CASH SETTLEMENT PERIOD" shall have the meaning set forth in Section
10.02(a).
"CERTIFICATED SECURITIES" means Securities that are in the form of the
Securities attached hereto as EXHIBIT B.
"CHANGE OF CONTROL" means:
(i) a "person" or "group" within the meaning of Section
13(d)(3) of the Exchange Act other than the Company, its subsidiaries
or its or their employee benefit plans, files a Schedule TO or any
schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect "beneficial owner,"
as defined in Rule 13d-3 under the Exchange Act, of shares of the
Capital Stock representing more than 50% of the voting power of the
Capital Stock entitled to vote generally in the election of directors;
or
(ii) the first day on which a majority of the members of the
Board of Directors does not consist of Continuing Directors; or
(iii) the Company consolidates or merges with or into any
other Person, or any merger of another Person into the Company, or
enters into any binding share exchange between the Company and any
other Person, or any conveyance, transfer, sale, lease or other
disposition of all or substantially all of the assets of the Company to
another Person, other than: (A) any transaction: (1) that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's Capital Stock, and (2) pursuant to
which holders of the Company's Capital Stock immediately prior to the
transaction have the entitlement to exercise, directly or indirectly,
50% or more of the total voting power of all shares of Capital Stock
entitled to vote generally in elections of directors of the continuing
or surviving Person immediately after giving effect to such issuance;
(B) any merger, share exchange, transfer of assets or other similar
transaction which is effected solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares of
Common Stock, if at all, solely into shares of common stock, ordinary
shares or American Depositary Shares of the surviving Person or any
direct or indirect parent of such Person; or (C) any consolidation or
merger with or into any of the Company's Subsidiaries, so long as such
merger or consolidation is not part of a plan or a series of
transactions designed to, or having the effect of, merging or
consolidating with any other Person.
For the purposes of this definition, (x) whether a person is a
"BENEFICIAL OWNER" shall be determined in accordance with Rule 13d-3 under the
Exchange Act and (y) the term "person" includes any syndicate or group that
would be deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
2
"CLOSE OF BUSINESS" means 5:00 p.m., New York City time.
"CLOSING SALE PRICE" means, with respect to any security on any day,
the closing sale price per share on such day (or if no closing sale price is
reported, the average of the reported closing bid and ask prices or, if more
than one in either case, the average of the average closing bid and the average
closing ask prices) as reported in composite transactions for the principal
United States securities exchange on which such security is traded, or if such
security is not listed on a United States securities exchange, as reported by
the National Association of Securities Dealers Automated Quotation System, or if
not so reported, the average of the closing bid and ask prices of such security
in the over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or, in the absence of such a quotation,
a price determined by the Company on a basis it considers to be appropriate.
"COMMON STOCK" means the common stock, $0.50 par value per share, of
the Company existing on the date of this Indenture or any other shares of
Capital Stock of the Company into which such Common Stock shall be reclassified
or changed, including, subject to Section 10.05 without duplication, in the
event of a merger, consolidation or other similar transaction involving the
Company that is otherwise permitted hereunder in which the Company is not the
surviving Person, the common stock of such surviving corporation.
"COMPANY" means the party named as the "Company" in the first Section
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"COMPANY NOTICE" means a notice to Holders delivered pursuant to
Section 3.07 or Section 3.08.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any Officer.
"CONTINUING DIRECTOR" means a director who either was a member of the
Board of Directors on December 7, 2004 or who becomes a member of the Board of
Directors subsequent to that date and whose appointment, election or nomination
for election by the Company's shareholders is duly approved by a majority of the
Continuing Directors on the Board of Directors at the time of such approval,
either by a specific vote or by approval of the proxy statement issued by the
Company on behalf of the Board of Directors in which such individual is named as
nominee for director.
"CONVERSION AGENT" shall have the meaning set forth in Section 2.03.
"CONVERSION DATE" shall have the meaning set forth in Section 10.03.
"CONVERSION NOTICE" shall have the meaning set forth in Section
10.02(a).
"CONVERSION PRICE" as of any date means $1,000 divided by the
Conversion Rate as of such date.
3
"CONVERSION RATE" shall initially be 32.5355 shares of Common Stock per
$1,000 principal amount of the Securities, subject to adjustments as set forth
herein.
"CONVERSION RETRACTION PERIOD" shall have the meaning set forth in
Section 10.02(a).
"CONVERSION SETTLEMENT DATE" means the third Business Day following the
date the Settlement Amount is determined.
"CONVERSION VALUE" shall have the meaning set forth in Section
10.02(a).
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"CURRENT MARKET PRICE" on any date of determination shall mean the
average of the daily Closing Sale Prices per share of Common Stock for the ten
consecutive Trading Days ending on the earlier of such date of determination and
the day before the Ex-Dividend Date with respect to the issuance, distribution,
subdivision or combination requiring such computation. In the event that an
issuance, distribution, subdivision, combination or tender or exchange offer to
which Section 10.04 applies occurs during the period applicable for calculating
the Current Market Price pursuant to the definition in the preceding sentence,
the Current Market Price shall be calculated for such period in a manner
determined by the Board of Directors to reflect fairly the impact of such
issuance, distribution, subdivision, combination or tender or exchange offer on
the Closing Sale Price of the Common Stock during such period.
"DEPOSITARY" shall have the meaning set forth in Section 2.01(a).
"DESIGNATED EVENT" means the occurrence of either a Change of Control
or a Termination of Trading.
"DESIGNATED EVENT REPURCHASE DATE" shall have the meaning set forth in
Section 3.08(a).
"DESIGNATED EVENT REPURCHASE NOTICE" shall have the meaning set forth
in Section 3.08(c).
"DESIGNATED EVENT REPURCHASE PRICE" shall have the meaning set forth in
Section 3.08(a).
"DESIGNATED SUBSIDIARY" shall mean any existing or future, direct or
indirect, Subsidiary of the Company whose assets constitute 15% or more of the
total assets of the Company on a consolidated basis.
"DETERMINATION DATE" shall have the meaning set forth in Section
10.04(k).
4
"DISTRIBUTED ASSETS" shall have the meaning set forth in Section
10.04(d).
"DTC" shall have the meaning set forth in Section 2.01(a).
"EFFECTIVE DATE" shall have the meaning set forth in Section 10.01(c).
"EX-DIVIDEND DATE" means (1) when used with respect to any issuance or
distribution, the first date on which the Common Stock trades, regular way, on
the relevant exchange or in the relevant market from which the Closing Sale
Price was obtained without the right to receive such issuance or distribution,
and (2) when used with respect to any subdivision or combination of shares of
Common Stock, the first date on which the Common Stock trades, regular way, on
such exchange or in such market after the time at which such subdivision or
combination becomes effective.
"EXCESS VALUE OBLIGATION" shall have the meaning set forth in Section
10.02(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPIRATION TIME" shall have the meaning set forth in Section 10.04(f).
"EXTRAORDINARY CASH DIVIDEND" shall have the meaning set forth in
Section 10.04(e).
"FAIR MARKET VALUE", or "FAIR MARKET VALUE" shall mean the amount which
a willing buyer would pay a willing seller in an arm's-length transaction.
"FINAL NOTICE DATE" shall have the meaning set forth in Section
10.02(a). "FISCAL QUARTER" shall have the meaning set forth in Section
10.01(a).
"GLOBAL SECURITIES" means Securities that are in the form of the
Securities attached hereto as EXHIBIT A, and that are registered in the register
of Securities in the name of the Depositary or a nominee thereof, and to the
extent that such Securities are required to bear the Legend required by Section
2.06(e), such Securities will be in the form of a 144A Global Security.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"INTEREST" means interest payable on each Security pursuant to Section
1 of the Securities.
"INTEREST PAYMENT DATE" means June 1 and December 1 of each year,
commencing June 1, 2005.
5
"INTEREST RECORD DATE" means May 15 and November 15 of each year,
commencing May 15, 2005.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"LEGEND" has the meaning set forth in Section 2.06(e).
"LIQUIDATED DAMAGES" means the amount that is payable by the Company
pursuant to the Registration Rights Agreement upon a Registration Default (as
defined in such agreement).
"LIQUIDATED DAMAGES NOTICE" shall have the meaning set forth in Section
4.07.
"MEASUREMENT PERIOD" shall have the meaning set forth in Section
10.01(a).
"NOTICE OF DEFAULT" shall have the meaning set forth in Section 6.01.
"OFFER EXPIRATION TIME" shall have the meaning set forth in Section
10.04(g).
"OFFICER" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, the Treasurer, any Vice President,
the Secretary or any Assistant Secretary of the Company.
"OFFICER'S CERTIFICATE" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of the
Company by any Officer, and delivered to the Trustee. An Officer's Certificate
given pursuant to Section 4.03 shall be signed by the principal financial or
accounting Officer of the Company but need not contain the information specified
in Sections 11.04 and 11.05.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 11.04 and 11.05, from legal counsel. The counsel may be an
employee of, or counsel to, the Company.
"PAYING AGENT" shall have the meaning set forth in Section 2.03.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PURCHASED SHARES" shall have the meaning set forth in Section
10.04(f).
"PURCHASE AGREEMENT" means the Purchase Agreement dated November 30,
2004 between the Company, on the one hand, and Xxxxxxxxx & Company, Inc., on the
other hand.
"QIBS" shall have the meaning set forth in Section 2.01(a).
"RECORD DATE" shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of Common Stock have the right
to receive any cash, securities or other property or in which the Common Stock
(or other applicable security) is exchanged for
6
or converted into any combination of cash, securities or other property, the
date fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
"REDEMPTION DATE" means the date specified in a Redemption Notice on
which the Securities may be redeemed in accordance with the terms of the
Securities and this Indenture.
"REDEMPTION NOTICE" shall have the meaning set forth in Section 3.03.
"REDEMPTION NOTICE DATE" shall have the meaning set forth in Section
10.02(a).
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in Section 3.01.
"REGISTRAR" shall have the meaning set forth in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated the date hereof, between the Company, on the one hand, and
Xxxxxxxxx & Company, Inc., on the other hand.
"REPURCHASE DATE" shall have the meaning set forth in Section 3.07.
"REPURCHASE NOTICE" shall have the meaning set forth in Section 3.07.
"REPURCHASE PRICE" shall have the meaning set forth in Section 3.07.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee having direct
responsibility for the administration of this Indenture, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"RESTRICTED SECURITY" means a Security required to bear the Legend.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"RULE 144A INFORMATION" shall have the meaning set forth in Section
4.06.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means any of the Company's 2.875% Convertible Senior Notes
due 2024, as amended or supplemented from time to time, issued under this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"SETTLEMENT AMOUNT" shall have the meaning as set forth in Section
10.02(a).
7
"STATED MATURITY", when used with respect to any Security, means
December 1, 2024.
"STOCK PRICE" shall have the meaning set forth in Section 10.01(d).
"SUBSIDIARY" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"TERMINATION OF TRADING" will be deemed to have occurred at any time
when the Common Stock (or other common stock into which the Securities are
convertible) is neither listed for trading on a U.S. national securities
exchange nor approved for trading on the Nasdaq National Market or any similar
system of automated dissemination of quotations of securities prices.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"TRADING DAY" means a day during which trading in the Common Stock
generally occurs and a Closing Sale Price for the Common Stock is provided on
the New York Stock Exchange or, if the Common Stock is not listed for trading on
the New York Stock Exchange, on the principal other U.S. national or regional
securities exchange on which the Common Stock then is listed or, if the Common
Stock is not listed for trading on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then
traded.
"TRADING PRICE" of the Securities on any date of determination means
the average of the secondary market bid quotations per Security obtained by the
Trustee, at the request of the Company, for $2,000,000 principal amount of the
Securities at approximately 3:30 p.m., New York City time, on such determination
date from three independent nationally recognized securities dealers the Company
selects; PROVIDED that if at least three such bids cannot reasonably be obtained
by the Trustee, but two such bids can be obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by the
Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at
least one bid for $2,000,000 principal amount of the Securities from a
nationally recognized securities dealer on such determination date, then the
trading price per Security will be deemed to be 97.9% of the Closing Sale Price
per share of Common Stock on such date of determination multiplied by the
Conversion Rate then in effect.
"TRIGGER EVENT" shall have the meaning set forth in Section 10.04(d).
"TRUSTEE" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"VOTING STOCK" of a person means Capital Stock of such person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such
8
person (irrespective of whether or not at the time Capital Stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.03 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "INCLUDING" means including, without limitation; and
(v) words in the singular include the plural, and words in the
plural include the singular.
Section 1.04 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an 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, as
described in Section 11.02. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of
9
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or 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 such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial number of any Security and the
ownership of Securities shall be proved by the register for the Securities.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; PROVIDED that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE 2
THE SECURITIES
Section 2.01 TITLE, FORM AND DATING. The Securities shall be known and
designated as the "2.875% Convertible Senior Notes due 2024" of the Company. The
aggregate principal amount of securities that may be authenticated and delivered
under this Indenture is limited to $250,000,000, except for Securities
authenticated and delivered upon registration of, or transfer of, or in exchange
for, or in lieu of other Securities pursuant to Sections 2.06, 2.07, 2.08 and
2.12.
10
The Securities and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBITS A AND B, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage (provided that any such notation, legend or
endorsement required by usage is in a form acceptable to the Company). The
Company shall provide any such notations, legends or endorsements to the Trustee
in writing. Each Security shall be dated the date of its authentication.
(a) 144A GLOBAL SECURITIES. Securities offered and sold to qualified
institutional buyers as defined in Rule 144A ("QIBS") in reliance on Rule 144A
shall be issued, initially in the form of a 144A Global Security, which shall be
deposited with the Trustee at its Corporate Trust Office, as custodian for the
Depositary (as defined below) and registered in the name of The Depository Trust
Company ("DTC") or the nominee thereof (DTC, or any successor thereto, and any
such nominee being hereinafter referred to as the "DEPOSITARY"), duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the 144A Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary as hereinafter provided.
(b) GLOBAL SECURITIES IN GENERAL. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
(c) BOOK-ENTRY PROVISIONS. This Section 2.01(c) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or held by the Trustee pursuant to
the Depositary's instructions and (c) shall be substantially in the form of
EXHIBIT A attached hereto.
(d) CERTIFICATED SECURITIES. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of EXHIBIT B attached hereto.
Section 2.02 EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were, at the time of the execution of the Securities, Officers shall bind
the Company, notwithstanding that such
11
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 authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount of up to $250,000,000 upon one or more
Company Orders without any further action by the Company (other than as
contemplated in Section 11.04 and Section 11.05 hereof).
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of principal amount and any integral
multiple of $1,000.
Section 2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR"), an office or agency
where Securities may be presented for purchase or payment ("PAYING AGENT") and
an office or agency where Securities may be presented for conversion
("CONVERSION AGENT"). The Registrar shall keep a register of the Securities and
of their registration of transfer and exchange. The Company may have one or more
co-registrars, one or more additional paying agents and one or more additional
conversion agents. The term Paying Agent includes any additional paying agent,
including any named pursuant to Section 4.05. The term Conversion Agent includes
any additional conversion agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, or co-registrar (in each case, if
such Registrar, agent or co-registrar is a Person other than the Trustee). The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.06 hereunder. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company hereby initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Securities.
Section 2.04 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except
as otherwise provided herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date) or shares
of Common Stock sufficient to make such payments when due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money and shares of Common Stock held by the Paying Agent for the
making of payments in
12
respect of the Securities and shall notify the Trustee of any default by the
Company in making any such payment. At any time during the continuance of any
such default, the Paying Agent shall, upon the written request of the Trustee,
forthwith pay to the Trustee all money and shares of Common Stock so held in
trust. If the Company, a Subsidiary or an Affiliate of either of them acts as
Paying Agent, it shall segregate the money and shares of Common Stock held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money and shares of Common Stock held by
it to the Trustee and to account for any funds and Common Stock disbursed by it.
Upon doing so, the Paying Agent shall have no further liability for the money or
shares of Common Stock.
Section 2.05 SECURITYHOLDER LISTS. The Trustee shall preserve the most
recent list available to it of the names and addresses of Securityholders. If
the Trustee is not the Registrar, the Company shall cause to be furnished to the
Trustee at least semiannually within 10 days after each Interest Record Date a
listing of Securityholders as of such Interest Record Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
Section 2.06 TRANSFER AND EXCHANGE. Subject to Section 2.12 hereof,
upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.03, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company or the Trustee may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection with
the registration of transfer or exchange of the Securities from the
Securityholder requesting such registration of transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount upon surrender of the Securities to be exchanged, together with
a written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Repurchase Notice or
Designated Event Repurchase Notice has been given and not withdrawn by the
Holder thereof in accordance with the terms of this Indenture (except, in the
case of Securities to be repurchased in part, the portion thereof not to be
repurchased) or any Securities for a period of 15 days before the mailing of a
Redemption Notice of Securities to be redeemed.
13
(a) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(a). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole
or in part, to the Depositary, to nominees of the Depositary or to a successor
of the Depositary or such successor's nominee.
(b) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(c) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon registration
of transfer or exchange of Securities.
(d) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(e) If Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the forms of Security attached hereto as EXHIBITS A AND B setting forth
such restrictions (collectively, the "LEGEND"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an opinion of counsel, as may be reasonably required by the
Company and the Registrar and the Trustee (if not the same Person as the
Trustee), that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 under the Securities Act or that such Securities are
not "restricted" within the meaning of Rule 144 under the Securities Act. Upon
(i) provision of such satisfactory evidence, (ii) the expiration of two years
after the later of the last date on which the Securities were originally issued
and the last date on which the Company, or any of its Affiliates, were the owner
of Securities or (iii) notification by the Company to the Trustee and Registrar
of the sale of such Security pursuant to a registration statement that is
effective at the time of such sale, the Trustee, at the written direction of the
Company, shall authenticate and deliver a Security that does not bear the
Legend. If the Legend is removed from the face of a Security and the Security is
subsequently held by the Company or an Affiliate of the Company, the Legend
shall be reinstated.
Section 2.07 REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such
14
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a certificate 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 is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
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 benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.08 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 2.07,
those delivered to it for cancellation and those described in this Section 2.08
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent, waiver, or other Act hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
Act, only Securities which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in
any such determination (including, without limitation, determinations pursuant
to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day immediately following a Repurchase Date
or a Designated Event Repurchase Date, or on Stated Maturity, money or
securities, if permitted hereunder, sufficient to pay Securities payable on that
date, then immediately after such Redemption Date, Xxxxxxxxxx
00
Date, Designated Event Repurchase Date or Stated Maturity, as the case may be,
such Securities shall cease to be outstanding and Interest and Liquidated
Damages, if any, on such Securities shall cease to accrue; PROVIDED, that if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.
If a Security is converted in accordance with Article 10, then from and
after the time of conversion on the date of conversion, such Security shall
cease to be outstanding and Interest and Liquidated Damages, if any, shall cease
to accrue on such Security.
Section 2.09 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.10 CANCELLATION. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 10. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with the Trustee's customary procedure.
Section 2.11 PERSONS DEEMED OWNERS. 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
the principal amount of the Security or any portion thereof, or the payment of
any Redemption Price, Repurchase Price or Designated Event Repurchase Price in
respect thereof, and Interest or Liquidated Damages thereon, for the purpose of
16
conversion and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 2.12 GLOBAL SECURITIES.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall be
made only in accordance with Section 2.06 and Section 2.12(a)(i) below, (B)
transfers of a beneficial interest in a Global Security for a Certificated
Security shall comply with Section 2.06, Section 2.12(a)(ii) below and Section
2.12(e) below, and (C) transfers of a Certificated Security shall comply with
Section 2.06 and Section 2.12(a)(iii) and Section 2.12(a)(iv) below.
(i) TRANSFER OF GLOBAL SECURITY. A Global Security may not be
transferred, in whole or in part, to any person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other person may be registered; PROVIDED that this clause
shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section
2.12(a)(i) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 2.12(a).
(ii) RESTRICTIONS ON TRANSFER OF A BENEFICIAL INTEREST IN A
GLOBAL SECURITY FOR A CERTIFICATED SECURITY. A beneficial interest in a
Global Security may not be exchanged for a Certificated Security except
upon satisfaction of the requirements set forth below and in Section
2.12(e) below. Upon receipt by the Trustee of a transfer of a
beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory to the
Trustee, together with:
(1) so long as the Securities are Restricted
Securities, certification in the form set forth in EXHIBIT C;
(2) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect a
decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to
contain information regarding the Depositary account to be
credited with such decrease; and
(3) an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate principal
amount of the Securities represented by the Global Security to be
decreased by the aggregate principal amount of the Certificated
Security to be issued, shall issue such Certificated Security and shall
debit or cause to be debited to the account
17
of the person specified in such instructions a beneficial interest in
the Global Security equal to the principal amount of the Certificated
Security so issued.
(iii) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES. When
Certificated Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated
Securities; or
(z) to exchange such Certificated Securities for an
equal principal amount of Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to clause
(A), (B) or (C) below, and are accompanied by the following additional
information and documents, as applicable:
(A) if such Certificated Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that effect; or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from registration, (i) a
certification to that effect (in the form set forth in EXHIBIT
C, if applicable) and (ii) if the Company or the Trustee so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions
set forth in the Legend.
(iv) RESTRICTIONS ON TRANSFER OF A CERTIFICATED SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(1) so long as the Securities are Restricted Securities,
certification, in the form set forth in EXHIBIT C, that such
Certificated Security (A) is being transferred
18
to a QIB in accordance with Rule 144A under the Securities Act or (B)
is being transferred pursuant to and in compliance with Rule 144 under
the Securities Act; and
(2) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause, or direct
the Registrar to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
principal amount of Securities represented by the Global Security to be
increased by the aggregate principal amount of the Certificated Security to be
exchanged, and shall credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Certificated Security so cancelled. If no
Global Securities are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon a Company Order, a new Global Security in the
appropriate principal amount.
(b) Subject to the succeeding Section 2.12(c), every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in EXHIBIT C, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel reasonably
acceptable to the Company and the Trustee, addressed to the Company and the
Trustee and in form acceptable to the Company and the Trustee, to the effect
that the transfer of such Security has been made in compliance with Rule 144 or
such successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the Securities under the Securities Act. The Trustee shall
not be liable for
19
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned opinion of counsel or registration statement.
(d) As used in Section 2.12(b) and (c), the term "transfer" encompasses
any sale, pledge, transfer, loan, hypothecation, or other disposition of any
Security.
(e) The provisions of clauses (i), (ii), (iii), (iv) and (v) below
shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this Indenture or
the Securities, a Global Security shall not be exchanged in whole or in
part for a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof; PROVIDED that a Global
Security may be exchanged for Securities registered in the names of any
person designated by the Depositary in the event that (x) the
Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security, and a successor
Depositary is not appointed by the Company within 90 days, (y) at any
time, the Company, in its sole discretion, determines not to have
Securities represented by Global Securities or (z) an Event of Default
has occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clauses (x) and (y) above shall
be so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clause (z) above may be exchanged in whole or
from time to time in part as directed by the Holder. Any Security
issued in exchange for a Global Security or any portion thereof shall
be a Global Security; PROVIDED that any such Security so issued that is
registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.
(ii) Securities issued in exchange for a Global Security or
any portion thereof shall be issued in definitive, fully registered
form, shall have an aggregate principal amount equal to that of such
Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends
provided for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the order of
the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the
registered Holder may grant proxies and otherwise authorize any person,
including Agent Members (as defined below) and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
20
(iv) In the event of the occurrence of any of the events
specified in clause (i) above, the Company will promptly notify the
Trustee and make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form.
(v) Neither any members of, or participants in, the Depositary
(collectively, the "AGENT MEMBERS") nor any other Persons on whose
behalf Agent Members may act shall have any rights under this Indenture
with respect to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any such Global Security,
and the Depositary or such nominee, as the case may be, may be treated
by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner and holder of such Global Security for all
purposes whatsoever; PROVIDED that an owner of a beneficial interest in
a Global Security may directly enforce against the Company, without the
consent, proxy or participation of the Depositary, such owner's right
to receive Certificated Securities pursuant to Section 2.12(e)(i)
above. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case
may be, or impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the
rights of a holder of any Security.
Section 2.13 CUSIP Numbers. The Company may issue the Securities with
one or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in Redemption Notices as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any Redemption Notice and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND REPURCHASES
Section 3.01 COMPANY'S RIGHT TO REDEEM; NOTICES TO TRUSTEE. Prior to
December 1, 2011 the Securities will not be redeemable at the Company's option.
Beginning on December 1, 2011, the Company, at its option, may redeem the
Securities for cash at any time as a whole, or from time to time in part, at a
redemption price (the "REDEMPTION PRICE") equal to 100% of the principal amount
of the Securities redeemed plus accrued and unpaid Interest, and accrued and
unpaid Liquidated Damages, if any, on the Securities redeemed, to (but
excluding) the Redemption Date. If the Redemption Date is on a date that is
after an Interest Record Date and on or prior to the corresponding Interest
Payment Date, the Company shall pay such Interest and Liquidated Damages, if
any, to the Holder of record on the corresponding Interest Record Date and the
Redemption Price shall only be 100% of the principal amount of those Securities
to be redeemed. If the Company elects to redeem Securities, it shall notify the
Trustee in writing of the Redemption Date, the Conversion Rate, the principal
amount of Securities to be redeemed and the Redemption Price.
21
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 45 days (unless a shorter notice shall
be satisfactory to the Trustee) but not more than 60 days before the Redemption
Date.
Securities called for redemption may be surrendered for conversion
pursuant to Section 10.01(a)(3) from the date of the Redemption Notice until the
close of business on the Business Day prior to the Redemption Date.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED. If less than all
of the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed by
lot, on a pro rata basis or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange or quotation association on which the Securities are then traded or
quoted). Subject to the previous sentence, the Trustee shall make the selection
within five Business Days after it receives the notice provided for in Section
3.01 from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal amount of Securities
that have denominations larger than $1,000.
Securities and portions of Securities that the Trustee selects shall be
in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of the Securities to be redeemed.
If any Security, a portion of which is selected for 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 that 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 3.03 REDEMPTION NOTICE. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption (a
"REDEMPTION NOTICE") 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:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the Conversion Rate;
(iv) the name and address of the Paying Agent and Conversion
Agent;
(v) that Securities called for redemption may be converted at
any time before the close of business on the Business Day prior to the
Redemption Date;
(vi) that Securities called for redemption and not converted
will be redeemed on the Redemption Date;
22
(vii) that Holders who want to convert their Securities must
satisfy the requirements set forth in the Securities;
(viii) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(ix) that the Redemption Price for any Security as to which a
Redemption Notice has been given will be paid promptly following the
later of the Business Day immediately following the Redemption Date and
the time of surrender of such Security as described in (viii);
(x) if fewer than all of the outstanding Securities are to be
redeemed, the certificate numbers, if any, and principal amounts of the
particular Securities to be redeemed;
(xi) that, unless the Company defaults in making payment of
such Redemption Price, Interest and Liquidated Damages, if any, on
Securities called for redemption will cease to accrue on and after the
Redemption Date; and
(xii) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the Redemption Notice in the
Company's name and at the Company's expense; PROVIDED that the Company makes
such request at least seven Business Days prior to the date by which such
Redemption Notice must be given to Holders in accordance with this Section 3.03
and the text of such notice is completed by the Company.
Section 3.04 EFFECT OF REDEMPTION NOTICE. Once the Redemption Notice 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 that
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 3.05 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m., New York
City time, on the 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) an amount of cash in
immediately available funds sufficient to pay the Redemption Price of all
Securities or portions thereof of which are 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 10. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 3.06 SECURITIES REDEEMED IN PART. Any Certificated Security
which is to be redeemed in part shall be surrendered at the office of the Paying
Agent 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
23
such Holder in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered which is not
redeemed.
Section 3.07 REPURCHASE OF SECURITIES BY THE COMPANY AT OPTION OF THE
HOLDER. Securities shall be repurchased by the Company at the option of the
Holder on December 1, 2011, December 1, 2014 and December 1, 2019 (each, a
"REPURCHASE DATE"), at a purchase price in cash (the "REPURCHASE PRICE") equal
to 100% of the principal amount of those Securities repurchased, plus accrued
and unpaid Interest and accrued and unpaid Liquidated Damages, if any, on those
Securities repurchased, to (but excluding) such Repurchase Date. If the
Repurchase Date is on a date that is after an Interest Record Date and on or
prior to the corresponding Interest Payment Date, the Company shall pay such
Interest and Liquidated Damages to the Holder of record on the corresponding
Interest Record Date and the Repurchase Price shall only be 100% of the
principal amount of those Securities to be repurchased.
Not later than 30 Business Days prior to any Repurchase Date, the
Company shall mail a Company Notice by first class mail to the Trustee and to
each Holder (and to beneficial owners as required by applicable law). The
Company Notice shall include a form of Repurchase Notice to be completed by a
Holder and shall state:
(i) the Repurchase Date;
(ii) the Repurchase Price;
(iii) the Conversion Rate;
(iv) the name and address of the Paying Agent and the
Conversion Agent;
(v) that Securities as to which a Repurchase Notice has been
given may be converted if they are otherwise convertible only in
accordance with Article 10 hereof if the applicable Repurchase Notice
has been withdrawn in accordance with the terms of this Indenture;
(vi) that Securities to be repurchased must be surrendered to
the Paying Agent to collect the Repurchase Price;
(vii) that the Repurchase Price for any Security as to which a
Repurchase Notice has been given and not withdrawn will be paid
promptly following the later of the Business Day immediately following
the Repurchase Date and the time of surrender of such Security as
described in (vi);
(viii) the procedures the Holder must follow to exercise
rights under this Section 3.07 and a brief description of those rights;
(ix) briefly, the conversion rights, if any, with respect to
the Securities;
(x) the procedures for withdrawing a Repurchase Notice;
24
(xi) that, unless the Company defaults in making payment on
Securities for which a Repurchase Notice has been submitted, and no
withdrawal thereof, Interest or Liquidated Damages, if any, on such
Securities will cease to accrue on and immediately after the Repurchase
Date; and
(xii) 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 the Company
makes such request at least seven Business Days prior to the date by which such
Company Notice must be given to Holders in accordance with this Section 3.07 and
the text of such Company Notice shall be prepared by the Company.
Purchases of Securities hereunder shall be made, at the option of the
Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a
written notice of repurchase (a "REPURCHASE NOTICE") during
the period beginning at any time from the opening of business
on the date that is 20 Business Days prior to the relevant
Repurchase Date until the close of business on the Repurchase
Date stating:
(A) the certificate numbers, if any, of the
Securities which the Holder will deliver to be
repurchased or the Applicable Procedures if
Certificated Securities have not been issued for such
Securities,
(B) the principal amount of the Securities
which the Holder will deliver to be repurchased,
which portion must be in principal amounts of $1,000
or an integral multiple of $1,000, and
(C) that such Securities shall be
repurchased by the Company as of the Repurchase Date
pursuant to the terms and conditions specified in the
Securities and in this Indenture; and
(2) delivery of such Securities (together with all
necessary endorsements) to the Paying Agent at the offices of
the Paying Agent, such delivery being a condition to receipt
by the Holder of the Repurchase Price therefor; PROVIDED,
HOWEVER, that such Repurchase Price shall be so paid pursuant
to this Section 3.07 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall repurchase from the Holder thereof, pursuant to this Section
3.07, Securities and any portions thereof, if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Repurchase Notice contemplated by this Section 3.07
shall have the right to withdraw
25
such Repurchase Notice at any time prior to the close of business on the
Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 3.09.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Repurchase Notice or written notice of withdrawal thereof.
Section 3.08 REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON A
DESIGNATED EVENT.
(a) If a Designated Event occurs (subject to certain exceptions set
forth below), all or any portion of Securities shall be purchased by the
Company, at the option of the Holder thereof, at a purchase price in cash equal
to 100% of the principal amount of those Securities repurchased (the "DESIGNATED
EVENT REPURCHASE PRICE"), plus accrued and unpaid Interest, and accrued and
unpaid Liquidated Damages, if any, on those Securities to (but excluding), the
date that is 30 days following the date of the notice of a Designated Event
delivered by the Company pursuant to Section 3.08(b) (the "DESIGNATED EVENT
REPURCHASE DATE"), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.08(c). If the Designated Event Repurchase
Date is on a date that is after an Interest Record Date and on or prior to the
corresponding Interest Payment Date, the Company shall pay such Interest and
Liquidated Damages to the Holder of record on the corresponding Interest Record
Date and the Designated Event Repurchase Price shall only be 100% of the
principal amount of those Securities to be repurchased.
Notwithstanding the foregoing, the Company shall not be required to
purchase Securities of Holders pursuant to this Section 3.08(a) upon a
Designated Event that is a Change of Control if 90% or more of the consideration
in the transaction or transactions (other than cash payments for fractional
shares and cash payments made in respect of dissenters' appraisal rights)
constituting a Change of Control described in clause (iii) in the definition
thereof consists of shares of common stock traded or to be traded immediately
following such Change of Control on a national securities exchange or the Nasdaq
National Market, and, as a result of the transaction or transactions, the
Securities become convertible into that common stock (and any rights attached
thereto).
(b) Not later than 30 Business Days after the occurrence of a
Designated Event, the Company shall mail a Company Notice of the Designated
Event by first class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The Company Notice shall include a form
of Designated Event Repurchase Notice to be completed by the Holder and shall
state:
(i) briefly, the events causing a Designated Event and the
date of such Designated Event;
(ii) the date by which the Designated Event Repurchase Notice
pursuant to this Section 3.08 must be delivered to the Paying Agent in
order for a Holder to exercise the repurchase rights;
(iii) the Designated Event Repurchase Date;
26
(iv) the Designated Event Repurchase Price;
(v) the Conversion Rate (including any Additional Shares to be
included in such Conversion Rate pursuant to Section 10.01(d));
(vi) the name and address of the Paying Agent and the
Conversion Agent;
(vii) that the Securities as to which a Designated Event
Repurchase Notice has been given may be converted if they are otherwise
convertible pursuant to Article 10 hereof only if the Designated Event
Repurchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(viii) that the Securities to be repurchased must be
surrendered to the Paying Agent to collect the Designated Event
Repurchase Price;
(ix) that the Designated Event Repurchase Price for any
Security as to which a Designated Event Repurchase Notice has been duly
given and not withdrawn will be paid promptly following the later of
the Business Day immediately following the Designated Event Repurchase
Date and the time of surrender of such Security as described in clause
(viii);
(x) the procedures the Holder must follow to exercise rights
under this Section 3.08 and a brief description of those rights;
(xi) briefly, the conversion rights, if any, on the
Securities;
(xii) the procedures for withdrawing a Designated Event
Repurchase Notice;
(xiii) that, unless the Company defaults in making payment on
Securities for which a Designated Event Repurchase Notice has been
submitted, and no withdrawal thereof, Interest and Liquidated Damages,
if any, on such Securities will cease to accrue on and immediately
after the Designated Event Repurchase Date; and
(xiv) 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 the
Company makes such request at least seven Business Days prior to the date by
which such Company Notice must be given to Holders in accordance with this
Section 3.08 and the text of such Company Notice shall be prepared by the
Company.
(c) A Holder may exercise its rights specified in this Section 3.08
upon delivery of a written notice of purchase (a "DESIGNATED EVENT REPURCHASE
NOTICE") to the Paying Agent at any time on or prior to the close of business on
the Designated Event Repurchase Date stating:
(i) the certificate numbers, if any, of the Securities which
the Holder will deliver to be repurchased or the Applicable Procedures
if Certificated Securities have not been issued for such Securities;
27
(ii) the principal amount of the Securities which the Holder
will deliver to be repurchased, which portion must be in principal
amount of $1,000 or an integral multiple of $1,000; and
(iii) that such Securities shall be purchased pursuant to the
terms and conditions specified in the Securities and in this Indenture.
The delivery of such Securities (together with all necessary
endorsements) to the Paying Agent with the Designated Event Repurchase Notice at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Designated Event Repurchase Price therefor; PROVIDED, HOWEVER,
that such Designated Event Repurchase Price shall be so paid pursuant to this
Section 3.08 only if the Security so delivered to the Paying Agent shall conform
in all respects to the description thereof set forth in the related Designated
Event Repurchase Notice.
The Company shall repurchase from the Holder thereof, pursuant to this
Section 3.08, Securities and any portions thereof, if the principal amount of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
repurchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Designated Event Repurchase Notice contemplated by this
Section 3.08(c) shall have the right to withdraw such Designated Event
Repurchase Notice at any time prior to the close of business on the Designated
Event Repurchase Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 3.09.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Designated Event Repurchase Notice or written withdrawal thereof.
Section 3.09 EFFECT OF REPURCHASE NOTICE OR DESIGNATED EVENT REPURCHASE
NOTICE.
(a) Upon receipt by the Paying Agent of the Repurchase Notice or
Designated Event Repurchase Notice specified in Section 3.07 or Section 3.08, as
applicable, the Holder of the Security in respect of which such Repurchase
Notice or Designated Event Repurchase Notice, as the case may be, was given
shall (unless such Repurchase Notice or Designated Event Repurchase Notice, as
the case may be, is withdrawn as specified in Sections 3.09(b) and (c))
thereafter be entitled solely to receive the Repurchase Price or Designated
Event Repurchase Price, as the case may be, with respect to such Security or
portion thereof. Such Repurchase Price or Designated Event Repurchase Price
shall be paid to such Holder, promptly following the later of (x) the Business
Day immediately following the Repurchase Date or the Designated Event Repurchase
Date, as the case may be, with respect to such Security (provided the conditions
in Section 3.07 or Section 3.08, as applicable, have been satisfied) and (y) the
time of delivery of such Security to the Paying Agent by the Holder thereof in
the manner required by Section 3.07 or Section 3.08, as applicable. Securities
in respect of which a Repurchase Notice or Designated Event Repurchase Notice
has been given by the Holder thereof may not be converted pursuant to Article 10
hereof on or after the date of the delivery of such Repurchase Notice or
Designated Event Repurchase Notice unless such Repurchase Notice or Designated
28
Event Repurchase Notice has first been validly withdrawn as specified in
Sections 3.09(b) and (c).
(b) A Repurchase Notice or Designated Event Repurchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Paying Agent in accordance with the Repurchase Notice or Designated Event
Repurchase Notice, as the case may be, at any time prior to the close of
business on the Repurchase Date or Designated Event Repurchase Date, as the case
may be, specifying:
(1) the certificate numbers, if any, of the Securities in
respect of which such notice of withdrawal is being submitted or the
Applicable Procedures if Certificated Securities have not been issued
for such Securities;
(2) the principal amount of those Securities with respect to
which such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Securities which
remains subject to the original Repurchase Notice or Designated Event
Repurchase Notice, as the case may be, and which has been or will be
delivered for repurchase by the Company.
(c) There shall be no repurchase of any Securities pursuant to Section
3.07 or 3.08 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 Repurchase Notice
or Designated Event Repurchase Notice, as the case may be) and is continuing an
Event of Default (other than a default in the payment of the Repurchase Price or
Designated Event 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 (1) with respect to which a Repurchase Notice or
Designated Event Repurchase Notice, as the case may be, has been withdrawn in
compliance with this Indenture, or (2) held by it during the continuance of an
Event of Default (other than a default in the payment of the Repurchase Price or
Designated Event Repurchase Price, as the case may be, with respect to such
Securities) in which case, upon such return, the Repurchase Notice or Designated
Event Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
Section 3.10 DEPOSIT OF REPURCHASE PRICE OR DESIGNATED EVENT REPURCHASE
PRICE. Prior to 10:00 a.m., New York City time, on the Business Day following
the Repurchase Date or the Designated Event 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) an amount of cash in
immediately available funds sufficient to pay the Repurchase Price or Designated
Event Repurchase Price, as the case may be, of all the Securities or portions
thereof which are to be repurchased as of the Repurchase Date or Designated
Event Repurchase Date, as the case may be.
Section 3.11 SECURITIES REPURCHASED IN PART. Any Certificated Security
which is to be repurchased 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
29
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 equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered which is not repurchased.
Section 3.12 COVENANT TO COMPLY WITH SECURITIES LAWS UPON REPURCHASE OF
SECURITIES. When complying with the provisions of Section 3.07 or 3.08 hereof,
and subject to any exemptions available under applicable law, the Company shall
(i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act, and (iii) otherwise comply with all federal
and state securities laws so as to permit the rights and obligations under
Sections 3.07 and 3.08 to be exercised in the time and in the manner specified
in Sections 3.07 and 3.08.
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of the Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Any amounts of cash in immediately
available funds or shares of Common Stock to be given to the Trustee or Paying
Agent, shall be deposited with the Trustee or Paying Agent by 10:00 a.m., New
York City time, by the Company. The principal amount of, and Interest and
Liquidated Damages, if any, on the Securities, and the Redemption Price,
Repurchase Price and the Designated Event Repurchase Price shall be considered
paid on the applicable date due if on such date (or, in the case of a Repurchase
Price or a Designated Event Repurchase Price, on the Business Day immediately
following the applicable Repurchase Date or Designated Event Repurchase Date, as
the case may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, cash or securities, if permitted hereunder, sufficient to pay all
such amounts then due.
Section 4.02 SEC AND OTHER REPORTS. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company shall comply with the other
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officer's Certificates).
Section 4.03 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending in December 31, 2004) an Officer's
Certificate, stating whether or not to the knowledge of the
30
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 such Officer may have knowledge.
Section 4.04 FURTHER INSTRUMENTS AND ACTS. The Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this
Indenture.
Section 4.05 MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency of the
Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of the agent of the Trustee located at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, shall initially be such office or agency
for all of the aforesaid purposes. The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of any such
office or agency (other than a change in the location of the office of the
Trustee). If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.
Section 4.06 DELIVERY OF CERTAIN INFORMATION. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, or in
accordance with Section 3.08(c), the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial owner of Securities or holder or beneficial owner of shares of Common
Stock, or to a prospective purchaser of any such security designated by any such
holder, as the case may be, to the extent required to permit compliance by such
Holder or holder with Rule 144A under the Securities Act in connection with the
resale of any such security. "RULE 144A INFORMATION" shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a
person is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.07 LIQUIDATED DAMAGES NOTICE. In the event that the Company
is required to pay Liquidated Damages to holders of Securities pursuant to the
Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to pay Liquidated
Damages prior to the Interest Record Date for the payment of Liquidated Damages,
and the Liquidated Damages Notice shall set forth the amount of
31
Liquidated Damages to be paid by the Company on such payment date. The Trustee
shall not at any time be under any duty to any Holder of Securities to determine
the Liquidated Damages, or with respect to the nature, extent or calculation of
the amount of Liquidated Damages when made, or with respect to the method
employed in such calculation of the Liquidated Damages.
ARTICLE 5
SUCCESSOR PERSON
Section 5.01 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company
shall not consolidate with or merge with or into any other Person or convey,
transfer, sell, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance, transfer
or lease all or substantially all of the properties and assets of the Company
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of
the obligations of the Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Designated
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company; PROVIDED
that, with respect to the foregoing, any securitization transaction or series of
securitization transactions entered into by any Subsidiary pursuant to which
such Subsidiary sells, transfers, conveys or grants a security interest in, any
assets (including any documentation of such securitization and rights arising
therefrom) that are the subject of such securitization transaction or series of
securitization transactions shall not be deemed to be the transfer of all or
substantially all the assets of the Company.
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all obligations and covenants
32
under this Indenture and the Securities. Subject to Section 9.06, the Company,
the Trustee and the successor Person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor Person and such
discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT. So long as any Securities are
outstanding, each of the following shall be an "Event of Default":
(1) the Company defaults in its obligation to convert
Securities into cash and shares of Common Stock, if any, upon the
exercise of a Holder's right pursuant to Article 10 on the applicable
Conversion Settlement Date;
(2) the Company defaults in its obligation to repurchase any
Security, or any portion thereof, upon the exercise by the Holder of
such Holder's right to require the Company to repurchase such
Securities pursuant to and in accordance with Section 3.07 or 3.08
hereof;
(3) the Company defaults in its obligation to redeem any
Security, or any portion thereof, called for redemption by the Company
pursuant to and in accordance with Section 3.01 hereof;
(4) the Company fails to provide a Company Notice of the
Designated Event when due in accordance with Section 3.08 hereof;
(5) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable;
(6) the Company defaults in the payment of any Interest or
Liquidated Damages when due and payable, and continuance of such
default for a period of 30 days thereafter;
(7) the Company fails to perform or observe any other term,
covenant or agreement contained in the Securities or this Indenture for
60 days after receipt by the Company of a Notice of Default;
(8) a failure to pay when due at maturity or a default that
results in the acceleration of maturity of any indebtedness for
borrowed money of the Company or any Designated Subsidiary in an
aggregate amount of $10,000,000 or more, unless the acceleration is
rescinded, stayed or annulled within 30 days after a Notice of Default;
(9) the entry by a court having jurisdiction in the premise of
(i) a decree or order for relief in respect of the Company or any of
Designated Subsidiary (or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Designated Subsidiary) in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or (ii) a decree or
33
order adjudging the Company or any Designated Subsidiary (or any group
of two or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary), a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Designated Subsidiary (or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Designated Subsidiary) under any
applicable 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 90 consecutive days; and
(10) the commencement by the Company or any Designated
Subsidiary (or any group of two or more Subsidiaries that, taken as a
whole, would constitute a Designated Subsidiary) of a voluntary case or
proceeding under any applicable 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 the Company or
any Designated Subsidiary (or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Designated Subsidiary) to
the entry of a decree or order for relief in respect of the Company or
any Designated Subsidiary (or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Designated Subsidiary) in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Company,
or the filing by the Company or any Designated Subsidiary (or any group
of two or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary) of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by
the Company to the filing of such petition or to the appointment of or
the 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 the Company or
any Designated Subsidiary (or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Designated Subsidiary) of an
assignment for the benefit of creditors, or the admission by the
Company or any Designated Subsidiary (or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary) in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or
any Designated Subsidiary (or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Designated Subsidiary)
expressly in furtherance of any such action.
For the avoidance of doubt, clauses (7) and (8) above shall not constitute an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities at the time
outstanding notify the Company and the Trustee, of such default and the Company
does not cure such default (and such default is not waived) within the time
specified in clause (7) or (8) above, as applicable, after actual receipt of
such notice. Any
34
such notice must specify the default, demand that it be remedied and state that
such notice is a "NOTICE OF DEFAULT."
If a default or Event of Default occurs and if it is known to the
Trustee, the Trustee shall give to each Securityholder notice of the default or
Event of Default within 90 days after it occurs or, if later, within 15 days
after it is known to the Trustee, unless such default or Event of Default shall
have been cured or waived before the giving of such notice. Notwithstanding the
preceding sentence, except in the case of a default or Event of Default
described in Section 6.01 clauses (1) through (6), the Trustee may withhold the
notice if, and so long as in good faith, it determines that withholding the
notice is in the best interest of the Securityholders. The preceding sentence
shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is
hereby expressly excluded from this Indenture, as permitted by the TIA. The
Trustee shall not be deemed to have knowledge of a default or Event of Default
unless a Responsible Officer of the Trustee has received written notice of such
default or Event of Default, which notice specifically references this Indenture
and the Securities.
Section 6.02 ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 6.01(9) and Section 6.01(10) with respect to the
Company) occurs and is continuing (the default not having been cured or waived),
the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding by notice
to the Company and the Trustee, may declare the principal amount of the
Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, on all the Securities to be immediately due and
payable. Upon such a declaration, such accelerated amount shall be due and
payable immediately. If an Event of Default specified in Section 6.01(9) and
Section 6.01(10) with respect to the Company occurs and is continuing, the
principal amount of the Securities and any accrued and unpaid Interest, and
accrued and unpaid Liquidated Damages, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder) may rescind an
acceleration and its consequences if the rescission (i) would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of the principal amount of the Securities and any
accrued and unpaid Interest, and accrued and unpaid Liquidated Damages, if any,
that have become due solely as a result of acceleration and (iii) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel have been
paid. No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereto.
Section 6.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount of the Securities and any accrued and unpaid Interest,
and accrued and unpaid Liquidated Damages, if any, on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of
35
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.04 WAIVER OF PAST DEFAULTS. Subject to Section 6.02, the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing or past Event of Default and its
consequences except an Event of Default in respect of a provision that under
Section 9.02 cannot be amended without the consent of each Securityholder
affected. When an Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Event of Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of
the TIA and such Section 316(a)1(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
Section 6.05 CONTROL BY MAJORITY. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.05 shall be in lieu of Section 316(a)1(A) of the TIA and such
Section 316(a)1(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.06 LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
security or indemnity satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of such notice, request and offer
of security or indemnity; and
(5) the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding do not give
the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
36
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount of the Securities and any accrued and unpaid Interest, and
accrued and unpaid Liquidated Damages, 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, Repurchase Date or Designated Event Repurchase Date, and
to convert the Securities in accordance with Article 10, 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 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01 clauses (1) through (6) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and all other amounts due to the Trustee as provided for in Section 7.06.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount of the Securities and any accrued and unpaid
Interest, and accrued and unpaid Liquidated Damages, if any, in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole principal amount of the
Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.06) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
37
FIRST: to the Trustee for amounts due under Section 7.06;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for the principal amount of the Securities and any accrued and unpaid Interest,
and accrued and unpaid Liquidated Damages, if any, as the case may be, ratably,
without preference or priority of any kind, according to such amounts due and
payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount of
the Securities and any accrued and unpaid Interest, and accrued and unpaid
Liquidated Damages, if any, on Securities, as contemplated herein, or which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE 7
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE. The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
38
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others,
and no implied duties shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture,
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein. This Section 7.01(b) shall be in lieu of
Section 315(a) of the TIA and such Section 315(a) is hereby
expressly excluded from this Indenture, as permitted by the
TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this Section (c) does not limit the effect of
Section 7.01(b);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(e) Subject to Section 7.01(a), the Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
39
(g) 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.
Section 7.02 RIGHTS OF TRUSTEE. Subject to its duties and
responsibilities under the TIA:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officer's Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liability which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further
40
inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other person employed to act
hereunder;
(k) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officer's Certificate may be signed by any person authorized to sign an
Officer's Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(l) the permissive rights of the Trustee enumerated herein shall not be
construed as duties.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.09 and 7.10.
Section 7.04 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
Section 7.05 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such
December 31 that complies with TIA Section 313(a), if required by such Section
313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee promptly in
writing whenever the Securities become listed on any securities exchange and of
any delisting thereof.
41
Section 7.06 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence or willful misconduct; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including reasonable attorney's fees and expenses,
and taxes (other than taxes based upon, measured by or determined by the income
of the Trustee)) incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations in this Section 7.06, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the principal
amount of, or the Redemption Price, Repurchase Price, Designated Event
Repurchase Price, Interest, or Liquidated Damages, if any, as the case may be,
on particular Securities.
The Company's payment obligations pursuant to this Section 7.06 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.01(9), the expenses, including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any bankruptcy law.
Section 7.07 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.07. The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding may remove the Trustee by so notifying the Trustee and
the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.09;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
42
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint, by resolution of its
Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.06.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.09, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be continuing,
if the Company shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date specified therein, and
(ii) an instrument of acceptance of such appointment, effective as of such date,
by such successor Trustee in accordance with this Indenture, the Trustee shall
be deemed to have resigned as contemplated in this Section 7.07, the successor
Trustee shall be deemed to have been accepted as contemplated in this Indenture,
all of such date, and all other provisions of this Indenture shall be applicable
to such resignation, appointment and acceptance.
Section 7.08 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.09 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
Section 7.10 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
43
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 DISCHARGE OF LIABILITY ON SECURITIES. When (i) the Company
delivers to the Trustee all outstanding Securities (other than Securities
replaced or repaid pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.06, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officer's Certificate and Opinion of Counsel and
at the cost and expense of the Company.
Section 8.02 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company upon written request any money or securities held by
them for the payment of any amount with respect to the Securities that remains
unclaimed for two years, together with interest if any, thereon subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person
and the Trustee and the Paying Agent shall have no further liability to the
Securityholders with respect to such money or securities for that period
commencing after the return thereof.
ARTICLE 9
AMENDMENTS
Section 9.01 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder to:
(a) add to the covenants of the Company for the benefit of the Holders
of Securities;
(b) surrender any right or power herein conferred upon the Company;
(c) provide for conversion rights of Holders of Securities if any
reclassification or change of the Common Stock or any consolidation, merger or
sale of all or substantially all of the Company's assets occurs;
(d) provide for the assumption of the Company's obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof;
(e) increase the Conversion Rate; PROVIDED, HOWEVER, that such increase
in the Conversion Rate shall not adversely affect the interests of the Holders
of Securities, PROVIDED, FURTHER, HOWEVER, that any adjustments to the
Conversion Rate pursuant to Section 10.04 shall not be deemed an amendment to
this Indenture;
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA or in connection with
the registration of the Securities as contemplated by the Registration Rights
Agreement; PROVIDED, that such
44
modification or amendment does not, in the good faith opinion of the Board of
Directors, adversely affect the interests of the Holders of the Securities in
any material respect;
(g) cure any ambiguity or correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is otherwise
defective; PROVIDED, that such modification or amendment does not, in the good
faith opinion of the Board of Directors, adversely affect the interests of the
Holders of the Securities in any material respect; or
(h) add or modify any other provisions herein with respect to matters
or questions arising hereunder which the Company and the Trustee may deem
necessary or desirable and which, in the good faith opinion of the Board of
Directors, will not adversely affect the interests of the Holders of Securities
in any material respect; PROVIDED that any addition or modification made solely
to conform the provisions of this Indenture to the "Description of Notes" in the
Offering Memorandum relating to the Securities will not be deemed to adversely
affect the interests of the Holders of the Securities.
Section 9.02 WITH CONSENT OF HOLDERS. Except as provided below in this
Section 9.02, this Indenture or the Securities may be amended, modified or
supplemented, and noncompliance in any particular instance with any provision of
this Indenture or the Securities may be waived, in each case with the written
consent of the Holders of at least a majority of the aggregate principal amount
of the Securities at the time outstanding.
Without the written consent or the affirmative vote of each Holder of
Securities affected thereby, an amendment, supplement or waiver under this
Section 9.02 may not:
(a) change the maturity of any Security, or the payment date of any
installment of Interest, or Liquidated Damages payable on any Security;
(b) reduce the principal amount of, or the Interest or Liquidated
Damages, payable on, or the Redemption Price, Repurchase Price or Designated
Event Repurchase Price of, any Security;
(c) impair or adversely affect the conversion rights of any Holder of
Securities;
(d) change the currency of payment of such Securities, Interest or
Liquidated Damages thereon;
(e) alter the manner of calculation or rate of Interest or Liquidated
Damages on any Security, or extend time for payment of any amounts due and
payable to the Holders of the Securities;
(f) impair the right of any Holder to institute suit for the
enforcement of any payment on or with respect to, or conversion of, any
Security;
(g) adversely affect the repurchase right of the Holders of the
Securities as provided in Article 3, except as otherwise permitted pursuant to
Article 5 hereof;
(h) modify the provisions of Article 3 in a manner adverse to the
Holders of the Securities;
45
(i) modify any of the provisions of this Section, or reduce the
percentage of the aggregate principal amount of outstanding Securities required
to amend, modify or supplement the Indenture or the Security or waive an Event
of Default, except 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; or
(j) reduce the percentage of the aggregate principal amount of the
outstanding Securities the consent of whose Holders is required for any such
supplemental indenture entered into in accordance with this Section 9.02 or the
consent of whose Holders is required for any waiver provided for in this
Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Nothing in this Section 9.02 shall impair the ability of the Company
and the Trustee to amend this Indenture or the Securities without the consent of
any Securityholder to provide for the assumption of the Company's obligations to
the Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 9.06 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment contained therein does not affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign such
supplemental indenture. In signing such supplemental indenture the
46
Trustee shall receive, in addition to the documents required by Section 11.04
and (subject to the provisions of Section 7.01) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
Section 9.07 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
CONVERSIONS
Section 10.01 CONVERSION PRIVILEGE.
(a) Subject to and upon compliance with the provisions of this
Indenture, prior to the Stated Maturity, the Holder of any Security shall have
the right, at such Holder's option, to convert the principal amount of the
Security, or any portion of such principal amount which is an integral multiple
of $1,000, into some combination of cash and, at the Company's option, fully
paid and non-assessable shares of Common Stock (as such shares shall then be
constituted) at the Conversion Rate in effect at such time, by surrender of the
Security so to be converted in whole or in part, together with any required
funds, under the circumstances described in this Section 10.01 and in the manner
provided in Section 10.02. Upon conversion of a Security, the Company shall
deliver the Settlement Amount as set forth in Section 10.02. The Securities
shall be convertible only during the following periods upon the occurrence of
one of the following events:
(1) during any fiscal quarter of the Company (a
"FISCAL QUARTER") (and only during such Fiscal Quarter)
commencing after December 31, 2004, if the Closing Sale Price
of the Common Stock for at least 20 of the last 30 Trading
Days of the immediately preceding Fiscal Quarter was more than
130% of the Conversion Price in effect on the 30th Trading Day
of such Fiscal Quarter;
(2) during the five (5) Business Day period after any
five (5) consecutive Trading Day period (the "MEASUREMENT
PERIOD") in which the Trading Price per Security, as
determined following a request by a holder in accordance with
the procedures described below, for each day of that
Measurement Period is less than 98% of the product of the
Conversion Rate and the Closing Sale Price of the Common Stock
for each day during such Measurement Period; PROVIDED, that a
Holder may not convert Securities in reliance on this
provision after December 1, 2019 if on any Trading Day during
the Measurement Period the Closing Sale Price of the Common
Stock is greater than or equal to the Conversion Price but
less than or equal to 130% of the Conversion Price;
(3) at any time prior to the close of business on the
Business Day immediately preceding the Redemption Date, if
such Security has been called for redemption pursuant to
Article 3 hereof; and
47
(4) as provided in clause (b) and clause (c) of this
Section 10.01.
On the last Trading Day of each Fiscal Quarter, commencing after
December 31, 2004 the Trustee or a designated agent shall determine whether the
Closing Sale Price of the Common Stock for at least 20 of the last 30 Trading
Days of such Fiscal Quarter was more than 130% of the Conversion Price in effect
on such 30th Trading Day, and if so, shall promptly deliver to the Company and
Conversion Agent written notice thereof.
In connection with any conversion pursuant to Section 10.01(a)(2), the
Trustee shall have no obligation to obtain the bids and perform the calculations
necessary for the Company to determine the Trading Price of the Securities
unless the Company has requested it to do so in writing, and the Company shall
have no obligation to make such request unless a Holder provides the Company
with reasonable evidence that the Trading Price per Security is less than 98% of
the product of the Closing Sale Price of the Common Stock and the Conversion
Rate. At such time, the Company will instruct the Trustee to obtain the bids (in
the manner described in the definition of Trading Price) beginning on the next
Trading Day and on each successive Trading Day until the Trading Price per
Security is greater than or equal to 98% of the product of the Closing Sale
Price of the Common Stock and the Conversion Rate.
Whenever the Securities shall become convertible pursuant to Section
10.01, the Company or, at the Company's written request, the Trustee in the name
and at the expense of the Company, shall promptly notify the Holders of the
event triggering such convertibility in the manner provided in Section 11.02.
Any notice so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice.
(b) In addition, in the event that:
(i) the Company distributes to all or substantially all
holders of Common Stock, rights or warrants entitling them to purchase,
for a period expiring within 60 days after the date of distribution,
Common Stock at less than the Closing Sale Price of the Common Stock on
the Business Day immediately preceding the announcement of such
distribution; or
(ii) the Company elects to distribute to all holders of Common
Stock cash or other assets, debt, securities or certain rights or
warrants to purchase the Company's securities, which distribution (or
which together with other such distributions within the previous 12
months) has a per share value as determined by the Board of Directors
exceeding 10% of the Closing Sale Price of the Common Stock on the
Business Day immediately preceding the announcement of such
distribution,
then, in each case, the Securities may be surrendered for conversion at any time
on and after the date that the Company gives notice to the Holders of such
right, which shall be not less than 20 days prior to the Ex-Dividend Date for
such distribution, until the earlier of the close of business on the Business
Day immediately preceding the Ex-Dividend Date or the date the Company announces
that such distribution will not take place.
(c) If (1) a Change of Control occurs as defined in clause (i) of the
definition thereof or (2) a Change of Control occurs as defined in clause (iii)
of the definition thereof pursuant to
48
which the Common Stock would be convertible into cash, securities or other
property, then the Securities may be surrendered for conversion at any time from
and after the effective date ("EFFECTIVE DATE") of such transaction until the
Designated Event Repurchase Date, and, in the case of clause (2) above, on such
Effective Date, the right to convert the Securities into shares of Common Stock
shall be changed as set forth in Section 10.05, if applicable. The Company shall
notify Holders and the Trustee at the same time the Company publicly announces
such transaction (but in no event less than 15 days prior to the anticipated
Effective Date).
(d) If a Holder elects to convert its Securities pursuant to Section
10.01(c) on or prior to December 1, 2011 and 10% or more of the consideration
received by holders of the Common Stock in connection with the transaction
triggering such conversion right consists of cash, securities or other property
that is not traded or scheduled to be traded immediately following such
transaction on a U.S. national securities exchange or the Nasdaq National
Market, the Conversion Rate for any such Securities surrendered for conversion
shall be increased by a number of additional shares of Common Stock per $1,000
principal amount of the Securities (the "ADDITIONAL SHARES") as described below.
The number of Additional Shares will be determined by reference to the
table attached as SCHEDULE A hereto, based on the Effective Date and the price
(the "STOCK PRICE") paid per share of the Common Stock in such transaction. If
holders of Common Stock receive only cash in such transaction, the Stock Price
shall be the cash amount paid per share. Otherwise, the Stock Price shall be the
average of the Closing Sale Prices of Common Stock on the five Trading Days
prior to but not including the Effective Date.
The Stock Prices set forth in the first row of the table in SCHEDULE A
hereto will be adjusted as of any date on which the Conversion Rate of the
Securities is adjusted pursuant to Section 10.04. The adjusted Stock Price will
equal the Stock Price applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate
immediately prior to the adjustment giving rise to the Stock Price adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number
of Additional Shares will be adjusted in the same manner as the Conversion Rate,
as set forth in Section 10.04.
The exact Stock Prices and Effective Dates may not be set forth in the
table in SCHEDULE A, in which case:
(i) if the Stock Price is between two Stock Price amounts in
the table or the Effective Date is between two Effective Dates in the
table, the number of Additional Shares will be determined by a
straight-line interpolation between the number of Additional Shares set
forth for the higher and lower Stock Price amounts and the two dates,
as applicable, based on a 365-day year,
(ii) if the Stock Price is equal to or in excess of $83.92 per
share, subject to adjustments set forth in Section 10.04, no Additional
Shares will be issued upon conversion, and
(iii) if the Stock Price is less than $20.98 per share,
subject to adjustments set forth in Section 10.04, no Additional Shares
will be issued upon conversion.
49
Notwithstanding the foregoing, in no event will the total number of
shares of Common Stock issuable upon conversion exceed 39.8655 shares per $1,000
principal amount of Securities or 9,966,375 shares of Common Stock in the
aggregate, whichever is less (in each case as adjusted on the same basis as the
Conversion Rate is adjusted pursuant to Section 10.04), subject to adjustments
in the same manner as the Conversion Rate as set forth in Section 10.04.
(e) A Security in respect of which a Holder is electing to exercise its
option to require repurchase upon a Designated Event pursuant to Section 3.08 or
repurchase pursuant to Section 3.07 may be converted only if such holder
withdraws its election in accordance with Section 3.09(b). A Holder of
Securities is not entitled to any rights of a holder of Common Stock until such
Holder has converted his Securities into shares of Common Stock, if any, and
only to the extent such Securities are deemed to have been converted to Common
Stock under this Article 10.
Section 10.02 PAYMENT UPON CONVERSION.
(a) Upon conversion the Company will deliver to Holders in respect of
each $1,000 aggregate principal amount of Securities being converted a
"SETTLEMENT AMOUNT" consisting of (1) cash equal to the lesser of $1,000 and the
Conversion Value, and (2) to the extent the Conversion Value exceeds $1,000 (the
"Excess Value") at the Company's option all or a portion of the Excess Value may
be paid in either (A) cash equal to the Excess Value or (B) a number of shares
equal to the sum of, for each day of the Cash Settlement Period, (i) 10% (or, if
a Holder elects to convert its Securities pursuant to Section 10.01(c) and is
entitled to Additional Shares pursuant to Section 10.01(d), then 20%) of the
Excess Value, divided by (ii) the Closing Sale Price of the Common Stock for
such day. The Company will deliver the Settlement Amount to converting Holders
on the third Business Day following the date the Settlement Amount is
determined.
If the Conversion Agent receives a Conversion Notice on or prior to (1)
the date on which the Company provides notice of redemption pursuant to Section
3.03 (a "REDEMPTION NOTICE DATE") or (2) the date that is 20 days prior to the
Stated Maturity (the "FINAL NOTICE DATE"), then if the Company satisfies all or
any portion of its obligation with respect to the Excess Value (the "EXCESS
VALUE OBLIGATION") in cash, the Company will notify the Holder through the
Trustee of the dollar amount to be satisfied in cash (which must be expressed
either as a fixed dollar amount or a fixed percentage of the Excess Value
Obligation) at any time on or before the date that is two Business Days
following receipt of the Holder's Conversion Notice (the "CASH SETTLEMENT NOTICE
PERIOD"). If the Company timely elects to pay cash for any portion of the shares
otherwise issuable upon conversion of the Securities, the Holder may retract the
Conversion Notice at any time during the two Business Day period following the
final day of the Cash Settlement Notice Period (the "CONVERSION RETRACTION
PERIOD"). No such retraction can be made (and a Conversion Notice will be
irrevocable) if the Company does not elect to deliver cash in lieu of shares
(other than cash in lieu of fractional shares). If the Conversion Notice has not
been retracted, then settlement (in cash and/or shares) will occur on the
Business Day following the final day of the 20 Trading Day period beginning on
the day after the final day of the Cash Settlement Period.
50
If a Conversion Notice is received after a Redemption Notice Date or
the Final Notice Date, the Company will not send individual notices of its
election to satisfy all or any portion of the Excess Value obligation in cash
and such Holders will not be allowed to retract the Conversion Notice.
"CONVERSION VALUE" means the product of (1) the Conversion Rate (plus,
any Additional Shares), or if converted during a Registration Default, 103% of
the Conversion Rate (plus, any Additional Shares), and (2) the average of the
Closing Sale Prices of the Common Stock for the Trading Days during the Cash
Settlement Period.
The "CASH SETTLEMENT PERIOD" with respect to any Securities means the
10 consecutive Trading Days beginning on the second Trading Day after delivery
of a written notice of conversion (a "CONVERSION NOTICE") to the Conversion
Agent; PROVIDED that if a Holder elects to convert its Securities pursuant to
Section 10.01(c) and is entitled to Additional Shares pursuant to Section
10.01(d), the "Cash Settlement Period" shall be the five consecutive Trading
Days prior to but not including the Effective Date.
(b) No fractional shares of Common Stock or scrip certificates
representing fractional shares shall be issued upon conversion of Securities.
The Company will deliver cash in lieu of any fractional shares of Common Stock
issuable in connection with payment of the Settlement Amount, based on the
Closing Sale Price of the Common Stock on the Trading Day immediately preceding
the Conversion Date.
Section 10.03 EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order to
exercise the conversion privilege with respect to any Certificated Securities,
the Conversion Agent must receive such Securities with the Conversion Notice,
duly completed and manually signed, together with such Securities duly endorsed
for transfer, accompanied by the funds, if any, required by this Section 10.03.
Such notice shall also state the name or names (with address or addresses) in
which the certificate or certificates for shares of Common Stock, if any, which
shall be issuable on such conversion shall be issued and to whom the cash
payable on such conversion shall be delivered, and shall be accompanied by
transfer or similar taxes, if required pursuant to Section 10.06.
In order to exercise the conversion privilege with respect to any
interest in a Global Security, the beneficial holder must complete, or cause to
be completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Security, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
Conversion Agent, and pay the funds, if any, required by this Section 10.03 and
any transfer taxes if required pursuant to Section 10.06.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Securityholder (as if such transfer were a transfer of the Security
or Securities (or portion thereof) so converted), the Company shall issue and
shall deliver to such Securityholder at the office or agency maintained by the
Company for such purpose pursuant to Section 4.05, cash and a certificate or
certificates for the number of full
51
shares of Common Stock, if any, issuable upon the conversion of such Security or
portion thereof as determined by the Company in accordance with the provisions
of this Article 10 and a check or cash in respect of any fractional shares of
Common Stock arising upon such conversion, calculated by the Company as provided
in Section 10.02. In case any Security of a denomination greater than $1,000
shall be surrendered for partial conversion, and subject to Section 2.01, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of the Security so surrendered, without charge to such Holder, a new
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Security.
Each conversion shall be deemed to have been effected as to any such
Security (or portion thereof) on the date on which the requirements set forth
above in this Section 10.03 have been satisfied as to such Security (or portion
thereof) (such date, the "CONVERSION DATE"), and the Person in whose name any
certificate or certificates for shares of Common Stock, if any, shall be
issuable upon such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; PROVIDED that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Security shall be
surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on any Interest Record Date to the opening of
business on the immediately following Interest Payment Date shall be accompanied
by payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the Interest plus Liquidated Damages, if any,
otherwise payable on such Interest Payment Date on the principal amount being
converted; PROVIDED that no such payment need be made (1) if the Company has
specified a Redemption Date that is after a Interest Record Date and on or prior
to the next Interest Payment Date, (2) if the Company has specified a Designated
Event Repurchase Date that is after an Interest Record Date and on or prior to
the next Interest Payment Date or (3) to the extent of any overdue Interest, if
any overdue Interest exists at the time of conversion with respect to such
Security. Except as provided above in this Section 10.03, no payment or other
adjustment shall be made for Interest accrued on any Security converted (other
than the payment of Liquidated Damages, if any) or for dividends on any shares
issued upon the conversion of such Security as provided in this Article 10.
Upon the conversion of an interest in a Global Security, the Trustee
(or other Conversion Agent), or the Custodian at the direction of the Trustee
(or other Conversion Agent), shall make a notation on such Global Security as to
the reduction in the principal amount represented thereby. The Company shall
notify the Trustee in writing of any conversions of Securities effected through
any Conversion Agent other than the Trustee.
Upon the conversion of a Security, that portion of the accrued but
unpaid Interest 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 cash and shares, if any, of 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 cash and fair market
52
value of such shares of Common Stock shall be treated as issued, to the extent
thereof, first in exchange for and in satisfaction of the Company's obligation
to pay the principal amount of the converted Security and the accrued but unpaid
Interest, and the balance, if any, of such cash and fair market value of such
Common Stock shall be treated as issued in exchange for and in satisfaction of
the right to convert the Security being converted pursuant to the provisions
hereof.
Section 10.04 ADJUSTMENT OF CONVERSION RATE. The Conversion Rate shall
be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the Record Date for such dividend or distribution
by a fraction,
(i) the numerator of which shall be the sum of (A) the number
of shares of Common Stock outstanding at the close of business on such
Record Date plus (B) the total number of shares constituting such
dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on such Record Date,
such increase to become effective immediately after the opening of business on
the day following the Record Date. If any dividend or distribution of the type
described in this Section 10.04(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders
of its outstanding shares of Common Stock entitling them (for a period expiring
within 60 days after the date of the distribution of such rights or warrants) to
subscribe for or purchase shares of Common Stock at a price per share less than
the Closing Sale Price on the Record Date for such rights or warrants, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
such Record Date by a fraction,
(i) the numerator of which shall be the sum of (A) the number
of shares of Common Stock outstanding at the close of business on such
Record Date plus (B) the total number of additional shares of Common
Stock offered for subscription or purchase (or into which convertible
Securities could be converted), and
(ii) the denominator of which shall be the sum of (A) the
number of shares of Common Stock outstanding at the close of business
on such Record Date plus (B) the number of shares of Common Stock that
the aggregate offering price of the total number of shares of Common
Stock so offered (or the aggregate conversion price of such convertible
securities) would purchase at such Current Market Price.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day
53
following the Record Date for such rights or warrants. To the extent that shares
of Common Stock are not delivered after the expiration of such rights or
warrants, the Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such Record Date for such
rights or warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than such Closing Sale Price, and in determining the aggregate offering
price of such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants and any amount
payable on exercise or conversion thereof, the value of such consideration, if
other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute to
all or substantially all holders of its Common Stock shares of any class of
Capital Stock of the Company or evidences of its indebtedness or assets,
including securities (but excluding any rights or warrants referred to in
Section 10.04(b) and excluding any dividend or distribution (x) paid exclusively
in cash or (y) referred to in Section 10.04(a)) (any of the foregoing
hereinafter in this Section 10.04(d) called the "DISTRIBUTED ASSETS"), then, in
each such case, the Conversion Rate shall be adjusted so that the same shall be
equal to the rate determined by multiplying the Conversion Rate in effect on the
Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price
on such Record Date; and
(ii) the denominator of which shall be the Current Market
Price less the Fair Market Value (as determined by the Board of
Directors and described in a resolution of the Board of Directors) on
the Record Date of the portion of the Distributed Assets so distributed
applicable to one share of Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the
Fair Market Value of any distribution for purposes of this Section 10.04(d) by
reference to the actual or when issued trading market for any securities, it
must in doing so
54
consider the prices in such market over the same period used in computing the
Current Market Price.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's Capital Stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 10.04 (and no adjustment to the Conversion Rate under
this Section 10.04 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 10.04(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 10.04 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case any such rights
or warrants shall have expired or been terminated without exercise by the
holders thereof, the Conversion Rate shall be readjusted to the Conversion Rate
that would then be in effect had the adjustments made upon the Trigger Event
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered.
No adjustment of the Conversion Rate shall be made pursuant to this
Section 10.04(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed.
For purposes of this Section 10.04(d) and Sections 10.04(a) and (b),
any dividend or distribution to which this Section 10.04(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 10.04(d) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment
55
required by Sections 10.04(a) and (b) with respect to such dividend or
distribution shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as "the Record Date for such dividend or
distribution" and "the Record Date for such rights or warrants" within the
meaning of Sections 10.04(a) and (b), and (B) any shares of Common Stock
included in such dividend or distribution shall not be deemed "outstanding at
the close of business on the such Record Date within the meaning of Section
10.04(a).
If any Distributed Assets requiring any adjustment pursuant to this
Section 10.04(d) consists of the Capital Stock, or similar equity interests in,
a Subsidiary or other business unit of the Company, the Conversion Rate in
effect immediately before the close of business on the Record Date fixed for
determination of shareholders entitled to receive the distribution shall instead
be increased by multiplying the Conversion Rate then in effect by a fraction,
(A) the numerator of which is the sum of (1) the average of the Closing Sale
Prices of such distributed security for the 10 Trading Days commencing on and
including the fifth Trading Day after the Ex-Dividend Date on the New York Stock
Exchange or such other national or regional exchange or market on which the
securities are then listed or quoted, plus (2) the average of the Closing Sale
Prices of the Common Stock over the same Trading Day period and (B) the
denominator of which is such average of the Closing Sale Prices of the Common
Stock.
(e) In case the Company shall, by dividend or otherwise, distribute to
all or substantially all holders of its Common Stock cash (an "EXTRAORDINARY
CASH DIVIDEND") (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary) in an amount in excess of an annual dividend rate of $0.28 per
share of Common Stock (appropriately adjusted from time to time for any stock
dividends on or subdivisions or combinations of Common Stock), then, in such
case, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to the close of business on the Record Date for such Extraordinary Cash Dividend
by a fraction,
(i) the numerator of which shall be the Current Market Price
on such Record Date, and
(ii) the denominator of which shall be such Current Market
Price on such Record Date minus the amount of cash so distributed
applicable to one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following such Record Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "EXPIRATION TIME") tenders or exchanges may be
made pursuant to such
56
tender or exchange offer (as it may be amended) exceeds the Closing Sale Price
of the Common Stock on the Trading Day next succeeding the Expiration Time, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (A) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "PURCHASED SHARES") and (B) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of the Common
Stock on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any Purchased Shares) at the
Expiration Time multiplied by the Closing Sale Price of the Common
Stock on the Trading Day next succeeding the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. In the event that the Company or any
Subsidiary is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company or any Subsidiary is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a Person other than
the Company or any Subsidiary for an amount that increases the such Person's
ownership of Common Stock to more than twenty-five percent (25%) of the Common
Stock outstanding and the cash and value of any other consideration included in
the payment per share of Common Stock exceeds the Current Market Price on the
first Trading Day after the expiration of the tender or exchange offer (the
"OFFER EXPIRATION TIME"), and in which, as of the Offer Expiration Time the
Board of Directors is not recommending rejection of the offer, the Conversion
Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the Offer
Expiration Time by a fraction
(i) the numerator of which shall be the sum of (A) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to the holders of Common Stock based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the
Offer Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "ACCEPTED PURCHASED SHARES") and (B)
the product of the number of shares of Common Stock outstanding (less
any Accepted Purchased Shares) at the Offer Expiration Time and the
Closing Sale Price of the Common Stock on the Trading Day next
succeeding the Offer Expiration Time, and
57
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any Accepted Purchase Shares) at
the Offer Expiration Time multiplied by the Closing Sale Price of the
Common Stock on the Trading Day next succeeding the Offer Expiration
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. In the event that such Person is
obligated to purchase Common Stock pursuant to any such tender or exchange
offer, but such Person is permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 10.04(g) shall not be made
if, as of the Offer Expiration Time, the offering documents with respect to such
offer disclose a plan or intention to cause the Company to engage in any
transaction described in Section 10.05.
(h) To the extent permitted by law and the listing requirements of the
New York Stock Exchange and any other exchange on which the Common Stock is
listed, the Company may make such increases in the Conversion Rate, in addition
to those required by this Section 10.04 as the Board of Directors considers to
be advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any stock distribution.
To the extent permitted by applicable law and the listing requirements
of the New York Stock Exchange and any other exchange in which the Common Stock
is then listed, the Company from time to time may increase the Conversion Rate
by any amount for a period of at least twenty (20) days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall mail to Holders
of record of the Securities and to the Trustee a notice of the increase at least
fifteen (15) days prior to the date the increased Conversion Rate takes effect,
and such notice shall state the increased Conversion Rate and the period during
which it will be in effect.
(i) All calculations under this Article 10 shall be made by the Company
and shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be, with one half-cent and 0.005 of a share,
respectively, being rounded upward. No adjustment need be made for:
(i) the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or
interest payable on the Company's securities and the investment of
additional optional amounts in shares of Common Stock under any plan,
(ii) the issuance of any shares of Common Stock or options or
rights to purchase those shares pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed
by the Company or any Subsidiary,
58
(iii) the issuance of any shares of Common Stock pursuant to
any option, warrant, right or exercisable, exchangeable or convertible
security outstanding as of the date the Securities were first issued,
(iv) a change in the par value of the Common Stock, or
(v) accrued and unpaid Interest, including Liquidated Damages,
if any.
To the extent the Securities become convertible into cash, assets, property or
securities (other than Capital Stock of the Company), no adjustment need be made
thereafter as to the cash, assets, property or such securities.
(j) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and the Conversion Agent other than
the Trustee an Officer's Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officer's Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the Holder of each Security at his
last address appearing on the Security register provided for in Section 2.03 of
this Indenture, within twenty (20) days after execution thereof. Furthermore,
the Company shall also issue a press release through Dow Xxxxx & Company, Inc.
or Bloomberg Business News containing the relevant information and make such
information available on the Company's website or through another public medium
as the Company may use at the time. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.
(k) In any case in which this Section 10.04 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the Record Date for a dividend or distribution pursuant to Section
10.04(a), (3) the Record Date for the issuance of rights or warrants pursuant to
Section 10.04(b), (4) the Expiration Time for any tender or exchange offer
pursuant to Section 10.04(f) or (5) the Offer Expiration Time for a tender offer
or exchange offer pursuant to Section 10.04(g) (each a "DETERMINATION DATE"),
the Company may elect to defer until the occurrence of the relevant Adjustment
Event (as hereinafter defined) (A) issuing to the Holder of any Security
converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional shares of Common Stock or other securities
issuable upon such conversion by reason of the adjustment required by such
Adjustment Event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) paying to such Holder any amount
in cash in lieu of any fraction pursuant to Section 10.04(a). For purposes of
this Section 10.04(k), the term "ADJUSTMENT EVENT" shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
59
(ii) in any case referred to in clause (2) hereof, the date
any such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date
of expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) or clause (5)
hereof, the date a sale or exchange of Common Stock pursuant to such
tender or exchange offer is consummated and becomes irrevocable.
(l) For purposes of this Section 10.04, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractional shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
Section 10.05 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 10.04(c) applies), (ii) any consolidation, merger,
statutory share exchange or combination of the Company with another Person, or
(iii) any sale or conveyance of all or substantially all the properties and
assets of the Company to any other Person, in each case, as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture) providing that each Security shall be
convertible, subject to the provisions of Section 10.03, into the kind and
amount of shares of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, statutory share exchange, combination, sale or conveyance by a holder of
a number of shares of Common Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of authorized shares of Common
Stock are available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, statutory share exchange,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, statutory share exchange,
combination, sale or conveyance (provided that, if the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, statutory share exchange,
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
("NONELECTING SHARE"), then for the purposes of this Section 10.05 the kind and
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, statutory
share exchange, combination, sale or conveyance for each nonelecting share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the nonelecting shares). Such supplemental indenture shall provide for
adjustments
60
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 10.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Securities, at its address appearing on
the Security register provided for in Section 2.03 of this Indenture, within
twenty (20) days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.05 applies to any event or occurrence, Section 10.04
shall not apply.
Section 10.06 TAXES ON SHARES ISSUED. The issue of any stock
certificates on conversions of Securities shall be made without charge to the
converting Holder for any tax in respect of the issue and delivery thereof. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name
other than that of the Holder of any Securities converted, and the Company shall
not be required to issue or deliver any such stock certificate unless and until
the Person or Persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
Section 10.07 RESERVATION OF SHARES, SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK.
(a) The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for the conversion of the Securities from time to time
as such Securities are presented for conversion.
(b) Before taking any action which would cause an adjustment increasing
the Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock issuable
upon conversion of the Securities, the Company will take all corporate action
which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue shares of such Common Stock at such adjusted
Conversion Rate.
(i) The Company covenants that all shares of Common Stock
which may be issued upon conversion of Securities or in payment of the
Repurchase Price or the Designated Event Repurchase Price will upon
issue be fully paid and non-assessable by the Company and free from all
taxes, liens and charges with respect to the issue thereof.
(ii) The Company covenants that, if any shares of Common Stock
to be provided for the purpose of conversion of Securities hereunder
require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued
upon conversion, the Company will in good faith and as expeditiously as
possible, to the extent then permitted by the rules and interpretations
of
61
the Securities and Exchange Commission (or any successor thereto),
endeavor to secure such registration or approval, as the case may be.
(iii) The Company further covenants that, if at any time the
Common Stock shall be listed on the Nasdaq National Market or any other
national securities exchange or automated quotation system, the Company
will, if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so
listed on such exchange or automated quotation system, all Common Stock
issuable upon conversion of the Security; PROVIDED, HOWEVER, that, if
the rules of such exchange or automated quotation system permit the
Company to defer the listing of such Common Stock until the first
conversion of the Securities into Common Stock in accordance with the
provisions of this Indenture, the Company covenants to list such Common
Stock issuable upon conversion of the Securities in accordance with the
requirements of such exchange or automated quotation system at such
time.
Section 10.08 RESPONSIBILITY OF TRUSTEE. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Securities to determine the Conversion Rate or whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and the Trustee and any other conversion agent make no
representations with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 10. Without limiting the generality of the
foregoing, neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 10.05 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 10.05 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 7.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officer's Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 10.09 NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 10.04; or
(b) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation,
62
merger or statutory share exchange to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company;
(c) of the voluntary dissolution, liquidation or winding up of the
Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder of Securities at his address appearing on the register provided for in
Section 2.03 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend are to be determined, or
(y) the date on which such reclassification, consolidation, merger, or statutory
share exchange, sale, transfer, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, or statutory share exchange, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, reclassification, consolidation, merger, or statutory share exchange,
sale, transfer, dissolution, liquidation or winding up.
Section 10.10 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION. If the Company hereafter adopts any stockholder rights plan, a
Securityholder shall be entitled to receive upon conversion of its Securities in
addition to the shares of Common Stock issuable upon conversion the related
rights for the Common Stock, whether or not the rights under the future
stockholder rights plan have separated from the Common Stock at the time of
conversion, but otherwise subject to the generally applicable terms of such plan
and no additional adjustment to the Conversion Rate shall be made for the future
stockholder rights plan under Section 10.04(d).
Section 10.11 UNCONDITIONAL RIGHT OF HOLDERS TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to convert
its Security in accordance with this Article 10 and to bring an action for the
enforcement of any such right to convert, and such rights shall not be impaired
or affected without the consent of such Holder.
ARTICLE 11
MISCELLANEOUS
Section 11.01 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.02 NOTICES. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
63
if to the Company:
OMI Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. London, Esq.
Facsimile: 203-602-6700
if to the Trustee:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Company or the Trustee by notice given to the other in the manner provided
above may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication given to a Securityholder shall be
delivered to the Securityholder, in accordance with the procedures of the
Registrar or by first-class mail, postage prepaid, at the Securityholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate stating that, in the
opinion of the signer, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
64
Section 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officer's Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such
Officer's Certificate or Opinion of Counsel has read such
covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such Officer's Certificate or Opinion of
Counsel are based;
(3) a statement that, in the opinion of each such
person, he has made such examination or investigation as is
necessary to enable such person to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such person,
such covenant or condition has been complied with.
Section 11.06 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.07 RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
Section 11.08 LEGAL HOLIDAYS. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest shall accrue with respect to such payment
for the intervening period.
Section 11.09 GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.
Section 11.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 11.11 SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
65
Section 11.12 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
66
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
OMI CORPORATION
By: /s/ Xxxxxxx X. London
--------------------------------------------------
Name: Xxxxxxx X. London
Title: Senior Vice President, Secretary and
General Counsel
HSBC BANK USA, NATIONAL ASSOCIATION, As Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
67
SCHEDULE A
The following table sets forth the number of Additional Shares to be received
per $1,000 principal amount of Securities.
STOCK PRICE
--------------------------------------------------------------------------------------------------------
EFFECTIVE DATE $20.98 $23.08 $25.18 $27.27 $29.37 $31.47 $33.57 $35.67 $37.76 $39.86 $41.96 $52.45 $62.94 $73.43 $83.92
--------------------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
December 1, 2004 .... 0.37 2.30 3.96 5.49 6.81 7.33 6.55 5.94 5.31 4.90 4.38 2.98 2.17 1.69 1.36
December 1, 2005 .... 0.59 2.38 3.98 5.41 6.71 7.16 6.34 5.66 5.08 4.58 4.16 2.73 1.96 1.50 1.20
December 1, 2006 .... 0.73 2.39 3.88 5.24 6.48 6.89 6.05 5.35 4.76 4.25 3.83 2.42 1.69 1.26 1.00
December 1, 2007 .... 0.77 2.27 3.65 4.93 6.11 6.49 5.62 4.90 4.30 3.80 3.38 2.03 1.35 0.98 0.76
December 1, 2008 .... 0.68 1.99 3.24 4.42 5.54 5.88 4.99 4.27 3.68 3.18 2.78 1.52 0.95 0.66 0.50
December 1, 2009 .... 0.40 1.47 2.54 3.61 4.66 4.97 4.07 3.35 2.78 2.32 1.94 0.89 0.48 0.31 0.23
December 1, 2010 .... 0.00 0.62 1.41 2.29 3.24 3.49 2.60 1.93 1.42 1.04 0.75 0.12 0.00 0.00 0.00
December 1, 2011 .... 0.00 0.00 0.00 0.00 0.01 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
68
EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE LAST DAY OF THE
ORIGINAL ISSUE DATE OF THE 2.875% CONVERTIBLE SENIOR NOTES DUE 2024 AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH
SECURITY EXCEPT (A) TO OMI CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT OF 1933, (C) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, INCLUDING RULE 144 UNDER THE
SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO RULE 144 OR
CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The legend in the preceding paragraph may be removed from this Security
upon the earlier of the Resale Restriction Termination Date or the transfer of
the Securities pursuant to Rule 144 or clause 2(D) above.
2
OMI CORPORATION
2.875% Convertible Senior Notes Due 2024
REGISTERED
CUSIP: 000000XX0
ISSUE DATE: December 7, 2004 Principal Amount: $250,000,000
No. R-
OMI Corporation, a Xxxxxxxx Islands corporation, promises to pay to
Cede & Co. or registered assigns, the principal amount of Two Hundred Fifty
Million Dollars, on December 1, 2024.
Interest Rate: 2.875% per year.
Interest Payment Dates: June 1 and December 1 of each year, commencing
June 1, 2005.
Interest Record Date: May 15 and November 15 of each year, commencing
May 15, 2005.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: December 7, 2004
OMI CORPORATION
By:
------------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By
----------------------------------
Authorized Officer
3
[FORM OF REVERSE OF GLOBAL SECURITY]
2.875% Convertible Senior Notes Due 2024
This Security is one of a duly authorized issue of 2.875% Convertible
Senior Notes Due 2024 (the "SECURITIES") of OMI Corporation, a Xxxxxxxx Islands
corporation (including any successor corporation under the Indenture hereinafter
referred to, the "COMPANY"), issued under an Indenture, dated as of December 7,
2004 (the "INDENTURE"), between the Company and HSBC Bank USA, National
Association, as trustee (the "TRUSTEE"). The terms of the Security include those
stated in the Indenture, those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended ("TIA"), and those set forth in this
Security. This Security is subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of this Security and the terms of the Indenture, the terms of the Indenture
shall control. Capitalized terms used but not defined herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST.
The Securities shall bear interest on the principal amount thereof at a
rate of 2.875% per year. Interest shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Securities. The Company shall also pay Liquidated
Damages as set forth in Section 4.07 of the Indenture and Section 3 of the
Registration Rights Agreement.
Interest will be payable semi-annually on each Interest Payment Date to
Holders at the close of business on the preceding Interest Record Date. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
If any Interest Payment Date of a security falls on a day that is not a
Business Day, such payment date will be postponed to the next succeeding
Business Day without any Interest or other payment in respect of the delay.
If this Security is redeemed or repurchased by the Company on a date
that is after the Interest Record Date and prior to the corresponding Interest
Payment Date, Interest and Liquidated Damages accrued and unpaid hereon to but
not including the Redemption Date, the Repurchase Date or the Designated Event
Repurchase Date, as the case may be, shall be paid to the Holder of record on
the corresponding Interest Record Date.
If the principal amount of any Security, or any accrued and unpaid
Interest or Liquidated Damages, if any, are not paid when due (whether (a) upon
acceleration pursuant to Section 6.02 of the Indenture, (b) upon the date set
for payment of the Redemption Price pursuant to Section 4 hereof, (c) upon the
date set for payment of the Repurchase Price or Designated Event Repurchase
Price pursuant to Section 5 hereof, (d) upon the Stated Maturity of the
Securities, (e) upon the Interest Payment Dates or (f) upon the Liquidated
Damages Payment Dates as defined in the Registration Rights Agreement), then in
each such case the overdue amount shall, to the extent permitted by law, bear
cash interest at the rate of 2.875% per annum, compounded
4
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for. All such interest shall be payable in cash
on demand but if not so demanded shall be paid quarterly to the Holders on the
last day of each quarter.
2. METHOD OF PAYMENT.
Except as provided below, the Company shall pay Interest on (a) Global
Securities to DTC in immediately available funds, (b) any Certificated Security
having an aggregate principal amount of $5,000,000 or less by check mailed to
the Holder of such Security and (c) any Certificated Security having an
aggregate principal amount of more than $5,000,000, by wire transfer in
immediately available funds at the election of the Holder of any such Security
if requested at least five Business Days prior to the payment date.
At Stated Maturity, the Company will pay Interest on Certificated
Securities at the Company's office or agency in New York City.
Subject to the terms and conditions of the Indenture, the Company will
make payments in cash in respect of Redemption Prices, Repurchase Prices and
Designated Event Repurchase Prices and at Stated Maturity to Holders who
surrender Securities to a Paying Agent to collect such payments in respect of
the Securities. The Company will pay cash amounts in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Company may make such cash payments by check payable in such
money.
3. INDENTURE.
The Securities are senior unsecured obligations of the Company limited
to $250,000,000 aggregate principal amount. The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
4. OPTIONAL REDEMPTION.
No sinking fund is provided for the Securities. Subject to the terms
and conditions of the Indenture, the Securities are redeemable for cash at the
option of the Company, at any time as a whole, or from time to time in part, in
integral multiples of $1,000 at a Redemption Price on or after December 1, 2011
upon not less than 30 nor more than 60 days notice before a Redemption Date by
mail to each Holder of Securities to e redeemed.
In no event will any Security be redeemable before December 1, 2011.
5. REPURCHASE AT THE OPTION OF THE HOLDER.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to repurchase for cash, at the option of the Holder, all or any
portion of the Securities held by such Holder on December 1, 2011, December 1,
2014 and December 1, 2019 in integral multiples of $1,000 at the Repurchase
Price. To exercise such right, a Holder shall deliver to the Paying Agent a
Repurchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is 20 Business Days prior to
such Xxxxxxxxxx
0
Date until the close of business on such Repurchase Date, and shall deliver the
Securities to the Paying Agent as set forth in the Indenture.
Subject to the terms and conditions of the Indenture, at the option of
the Holder the Company shall become obligated to repurchase, at the option of
the Holder, all or any portion of the Securities held by such Holder after the
occurrence of a Designated Event in integral multiples of $1,000 for a
Designated Event Repurchase Price. To exercise such right, a Holder shall
delivery to the Paying Agent a Designated Event Repurchase Notice containing
such information set forth in the Indenture at any time prior to the close of
business on the Designated Event Repurchase Date together with such Securities.
Holders have the right to withdraw any Repurchase Notice or Designated
Event Repurchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash sufficient to pay the Repurchase Price or Designated Event
Repurchase Price, as the case may be, of all Securities (or portions thereof) to
be repurchased as of the Repurchase Date or the Designated Event Repurchase
Date, as the case may be, is deposited with the Paying Agent, on the Business
Day immediately following the Repurchase Date or the Designated Event Repurchase
Date, Interest and Liquidated Damages, if any, will cease to accrue on such
Securities (or portions thereof) on and following such Repurchase Date or
Designated Event Repurchase Date, and the Holder thereof shall have no other
rights as such other than the right to receive the Repurchase Price or
Designated Event Repurchase Price upon surrender of such Security.
6. REDEMPTION NOTICE.
A Redemption Notice pursuant to Section 4 of this Security will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at the Holder's registered address. If
money sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, on and immediately after such
Redemption Date Interest and Liquidated Damages, if any, will cease to accrue on
such Securities (or portions thereof) and the Holder thereof shall have no other
rights as such other than the right to receive the Redemption Price upon
surrender of such Security.
7. CONVERSION.
Subject to the occurrence of certain events and in compliance with the
provisions of the Indenture, prior to the Stated Maturity of the Securities, the
Holder hereof has the right, at its option, to convert its Securities into cash
and, at the option of the company, shares of Common Stock. The Conversion Rate
shall not be adjusted for any accrued and unpaid Interest and accrued and unpaid
Liquidated Damages, if any. Upon conversion, no payment shall be made by the
Company with respect to accrued and unpaid Interest. Instead, such amount shall
be deemed paid by the cash or the shares of Common Stock, if any, delivered upon
conversion of any Security. A Holder shall receive, however, accrued and unpaid
Liquidated Damages, if any. In
6
addition, no payment or adjustment shall be made in respect of dividends on the
Common Stock, except as set forth in the Indenture.
The Company will notify Holders of any event triggering the right to
convert the Securities as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered a Repurchase
Notice or Designated Event Repurchase Notice, as the case may be, exercising the
option of such Holder to require the Company to purchase such Security may be
converted only if such Repurchase Notice or Designated Event Repurchase Notice,
as the case may be, is withdrawn in accordance with the terms of the Indenture.
To surrender a Security for conversion, a Holder must (a) complete and
manually sign the Conversion Notice attached hereto and deliver such notice to
the Conversion Agent, (b) surrender the Security to the Conversion Agent, (c)
furnish appropriate endorsements and transfer documents, (d) if required by
Section 10.03 of the Indenture, pay Interest and (e) pay any transfer or similar
tax, if required.
No fractional shares of Common Stock or scrip certificates representing
fractional shares shall be issued upon conversion of any Securities. In lieu of
such, the Company shall pay cash as provided in the Indenture.
If the Company (a) is a party to a consolidation, merger, statutory
share exchange or combination, (b) reclassifies or changes the outstanding
Common Stock, or (c) sells or conveys all or substantially all of its properties
and assets to any Person, each Security shall be convertible into the kind and
amount of shares of stock, other securities or other property or assets
(including cash) receivable such event, in each case in accordance with the
Indenture.
If a Holder elects to convert its Securities in connection with certain
corporate transactions that occur on or prior to December 1, 2011 and 10% or
more of the consideration for the Common Stock in the such transaction consists
of cash, securities or other property that is not traded or scheduled to be
traded immediately following such transaction on a U.S. national securities
exchange or the New York Stock Exchange, the Company shall increase the
Conversion Rate by the number of Additional Shares.
8. PAYING AGENT, CONVERSION AGENT AND REGISTRAR.
Initially, the Trustee will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion Agent
or Registrar without notice, other than notice to the Trustee; PROVIDED that the
Company will maintain at least one Paying Agent in the State of New York, The
City of New York, Borough of Manhattan, which shall initially be an office or
agency of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent or Registrar.
9. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and integral multiples of $1,000. A
Holder may transfer or exchange
7
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities in respect of which a Repurchase
Notice or Designated Event Repurchase Notice has been given and not withdrawn
(except, in the case of a Security to be repurchased in part, the portion of the
Security not to be repurchased) or any Securities for a period of 15 days before
the mailing of a Redemption Notice of Securities to be redeemed.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
11. UNCLAIMED MONEY OR SECURITIES.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
together with interest, if any, thereunder, subject to applicable unclaimed
property law. After return to the Company, Holders entitled to the money or
securities must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
12. AMENDMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities and (ii) certain Events of Defaults may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities (i) to add to the covenants of
the Company for the benefit of the Holders of Securities, (ii) to surrender any
right or power conferred upon the Company in the Indenture, (iii) to provide for
conversion rights of Holders of Securities if any reclassification or change of
the Common Stock or any consolidation, merger or sale of all or substantially
all of the Company's assets (iv) to provide for the assumption of the Company's
obligations to the Holders of Securities in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 5 of the Indenture, (v) to
increase the Conversion Rate; PROVIDED, HOWEVER, that such increase in the
Conversion Rate shall not adversely affect the interests of the Holders of
Securities, PROVIDED, FURTHER, HOWEVER, that any adjustments to the Conversion
Rate pursuant to the Indenture are not deemed an amendment to the Indenture,
(vi) to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA or in connection with the
registration of the Securities as contemplated by the Registration Rights
Agreement; PROVIDED, that such modification or amendment does not, in the good
faith opinion of the Board of Directors, adversely affect the interests of the
Holders of the Securities in any material respect, (vii) to cure any ambiguity
or to correct or supplement any provision in the Indenture
8
which may be inconsistent with any other provision in the Indenture or which is
otherwise defective; PROVIDED, that such modification or amendment does not, in
the good faith opinion of the Board of Directors, adversely affect the interests
of the Holders of the Securities, (x) add or modify any other provisions of the
Indenture with respect to matters or questions arising under the Indenture which
the Company and the Trustee may deem necessary or desirable and which, in the
good faith opinion of the Board of Directors, will not adversely affect the
interests of the Holders of Securities; PROVIDED that any addition or
modification made solely to conform the provisions of this Indenture to the
"Description of Notes" in the Offering Memorandum relating to the Securities
will not be deemed to adversely affect the interests of the Holders of the
Securities.
13. DEFAULTS AND REMEDIES.
If any Event of Default with respect to Securities shall occur and be
continuing, the principal amount of the Securities and any accrued and unpaid
Interest, and accrued and unpaid Liquidated Damages, if any, on all the
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
14. TRUSTEE DEALINGS WITH THE COMPANY.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
15. CALCULATIONS IN RESPECT OF SECURITIES.
The Company or its agents will be responsible for making all
calculations called for under the Securities including, but not limited to,
determination of the market prices for the Securities and of the Common Stock
and the amounts of Liquidated Damages, if any, accrued on the Securities. Any
calculations made in good faith and without manifest error will be final and
binding on Holders of the Securities.
16. RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. AUTHENTICATION.
This Security shall not be valid until an authorize signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
9
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES THEREOF, SHALL GOVERN THE INDENTURE AND THIS SECURITY.
20. COPY OF INDENTURE.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture that has in it the text of this Security
in larger type. Requests may be made to:
OMI Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. London, Esq.
Facsimile: (000) 000-0000
22. REGISTRATION RIGHTS.
The Holders of the Securities are entitled to the benefits of a
Registration Rights Agreement, dated December 7, 2004, between the Company and
Xxxxxxxxx & Company, Inc., including the receipt of Liquidated Damages upon a
Registration Default (as defined in such agreement). The Company shall make
payments of Liquidated Damages on the Liquidated Damages Payment Dates (as
defined in the Registration Rights Agreement), but otherwise in accordance with
the provisions set forth herein for the payment of Interest.
10
-----------------------------------------------------------------------------------------------------------------------
ASSIGNMENT FORM CONVERSION NOTICE
-----------------------------------------------------------------------------------------------------------------------
To assign this Security, fill in the form below: To convert this Security into Common Stock of the
Company, check the box [ ]
-----------------------------------------------------------------------------------------------------------------------
I or we assign and transfer this Security to To convert only part of this Security, state the
principal amount to be converted (which must be $1,000
_____________________________________________ or an integral multiple of $1,000):
(Insert assignee's soc. sec. or tax ID no.) If you want the stock certificate made out in another
person's name fill in the form below:
_____________________________________________
______________________________________________________
_____________________________________________ ______________________________________________________
_____________________________________________ (Insert the other person's soc. sec. tax ID no.)
(Print or type assignee's name, address and ______________________________________________________
zip code)
______________________________________________________
and irrevocably appoint
______________________________________________________
____________________ agent to transfer this Security on
the books of the Company. The agent may substitute (Print or type other person's name, address
another to act for him. and zip code)
-----------------------------------------------------------------------------------------------------------------------
Date: __________ Your Signature: _____________________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
_________________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
11
SCHEDULE OF INCREASES AND DECREASES
OF GLOBAL SECURITY
Initial Principal Amount of Global Security: Two Hundred Fifty Million dollars
($250,000,000).
--------------------------------------------------------------------------------
Amount of Amount of Principal
Increase in Decrease in Amount of Notation by
Principal Principal Global Security Registrar or
Amount of Amount of After Increase or Security
Date Global Security Global Security Decrease Custodian
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
12
EXHIBIT B
[FORM OF FACE OF CERTIFICATED SECURITY]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE LAST DAY OF THE
ORIGINAL ISSUE DATE OF THE 2.875% CONVERTIBLE SENIOR NOTES DUE 2024 AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH
SECURITY EXCEPT (A) TO OMI CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT OF 1933, (C) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, INCLUDING RULE 144 UNDER THE
SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO RULE 144 OR
CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The foregoing legend may be removed from this Security upon the earlier
of the Resale Restriction Termination Date or the transfer of the Securities
pursuant to Rule 144 or clause 2(D) above.
OMI CORPORATION
2.875% Convertible Senior Notes Due 2024
REGISTERED
CUSIP: 000000XX0
ISSUE DATE: December 7, 2004 Principal Amount: _____________________
No. R- __
OMI CORPORATION, a Xxxxxxxx Islands corporation, promises to pay to
__________ or registered assigns, the principal amount of _____________________,
on December 1, 2024.
Interest Rate: 2.875% per year.
Interest Payment Dates: June 1 and December 1 of each year, commencing
June 1, 2005.
Interest Record Date: May 15 and November 15 of each year, commencing
May 15, 2005.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _____________________
OMI CORPORATION
By: ____________________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Officer
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
2
EXHIBIT C
OMI CORPORATION
2.875% CONVERTIBLE SENIOR NOTES DUE 2024
TRANSFER CERTIFICATE
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"SECURITIES ACT") (or any successor provision), the undersigned registered owner
of this Security hereby certifies with respect to $____________ principal amount
of the above-captioned Securities presented or surrendered on the date hereof
(the "SURRENDERED SECURITIES") for registration of transfer, or for exchange or
conversion where the securities issuable upon such exchange or conversion are to
be registered in a name other than that of the undersigned registered owner
(each such transaction being a "TRANSFER"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
[ ] A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or
[ ] The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or
[ ] The transfer of the Surrendered Securities complies with Rule 144A
under the Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to Rule 144
under the Securities Act and each of the conditions set forth in such
rule have been met;
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"AFFILIATE").
[ ] The transferee is an Affiliate of the Company.
DATE:
------------------------------------------
Signature(s)
(If the registered owner is a corporation, partnership or fiduciary, the title
of the person signing on behalf of such registered owner must be stated.)
Signature Guaranteed
--------------------------------------------
Participant in a Recognized Signature
C-1
IN WITNESS WHEREOF,
---------------------------
By:
---------------------------------
Name:
Title:
C-2
