EXHIBIT 4.11
XXXXX & WESSON HOLDING CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK TRUST COMPANY, N.A.
AS TRUSTEE
----------
INDENTURE
DATED AS OF DECEMBER 15, 2006
----------
4% SENIOR CONVERTIBLE NOTES DUE 2026
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY.................................................. 1
ARTICLE I Definitions and Other Provisions of General Application........ 1
Section 1.01. Definitions............................................ 1
Section 1.02. Compliance Certificates and Opinions................... 12
Section 1.03. Form of Documents Delivered to Trustee................. 13
Section 1.04. Acts of Holders; Record Dates.......................... 13
Section 1.05. Notices, Etc. to Trustee and Company................... 14
Section 1.06. Notice to Holders; Waiver.............................. 15
Section 1.07. Conflict with Trust Indenture Act...................... 15
Section 1.08. Effect of Headings and Table of Contents............... 15
Section 1.09. Successors and Assigns................................. 15
Section 1.10. Severability Clause.................................... 15
Section 1.11. Benefits of Indenture.................................. 16
Section 1.12. Governing Law.......................................... 16
Section 1.13. Legal Holiday.......................................... 16
ARTICLE II Security Forms................................................ 16
Section 2.01. Forms Generally........................................ 16
Section 2.02. Form of Face of Security............................... 16
Section 2.03. Form of Reverse of Security............................ 16
Section 2.04. Form of Trustee's Certificate of Authentication........ 16
Section 2.05. Legend on Restricted Securities........................ 17
ARTICLE III The Securities............................................... 17
Section 3.01. Title and Terms........................................ 17
Section 3.02. Denominations.......................................... 17
Section 3.03. Execution, Authentication, Delivery and Dating......... 17
Section 3.04. Temporary Securities................................... 18
Section 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer............................ 18
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 20
Section 3.07. Persons Deemed Owners.................................. 21
Section 3.08. Book-Entry Provisions for Global Securities............ 21
Section 3.09. Cancellation and Transfer Provisions................... 23
Section 3.10. CUSIP Numbers.......................................... 24
ARTICLE IV Satisfaction And Discharge.................................... 25
Section 4.01. Satisfaction and Discharge of Indenture................ 25
Section 4.02. Application of Trust Money............................. 25
-i-
Page
----
ARTICLE V Remedies....................................................... 26
Section 5.01. Events of Default...................................... 26
Section 5.02. Acceleration of Maturity; Rescission and Annulment..... 27
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee............................................. 28
Section 5.04. Trustee May File Proofs of Claim....................... 29
Section 5.05. Application of Money Collected......................... 29
Section 5.06. Limitation on Suits.................................... 29
Section 5.07. Unconditional Right of Holders to Receive Payment...... 30
Section 5.08. Restoration of Rights and Remedies..................... 30
Section 5.09. Rights and Remedies Cumulative......................... 30
Section 5.10. Delay or Omission Not Waiver........................... 31
Section 5.11. Control by Holders..................................... 31
Section 5.12. Waiver of Past Defaults................................ 31
Section 5.13. Undertaking for Costs.................................. 31
Section 5.14. Waiver of Stay or Extension Laws....................... 32
ARTICLE VI The Trustee................................................... 32
Section 6.01. Certain Duties and Responsibilities.................... 32
Section 6.02. Notice of Defaults..................................... 33
Section 6.03. Certain Rights of Trustee.............................. 33
Section 6.04. Not Responsible for Recitals........................... 35
Section 6.05. May Hold Securities.................................... 35
Section 6.06. Money Held in Trust.................................... 35
Section 6.07. Compensation and Reimbursement......................... 35
Section 6.08. Disqualification; Conflicting Interests................ 36
Section 6.09. Corporate Trustee Required; Eligibility................ 36
Section 6.10. Resignation and Removal; Appointment of Successor...... 36
Section 6.11. Acceptance of Appointment by Successor................. 37
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business............................................ 38
Section 6.13. Preferential Collection of Claims Against.............. 38
ARTICLE VII Holders' Lists And Reports By Trustee........................ 38
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders............................................. 38
Section 7.02. Preservation of Information; Communications to
Holders............................................. 38
Section 7.03. Reports By Trustee..................................... 39
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer Or Lease........ 39
Section 8.01. Company May Consolidate, etc. Only on Certain Terms.... 39
Section 8.02. Successor Substituted.................................. 40
ARTICLE IX Supplemental Indentures....................................... 40
Section 9.01. Supplemental Indentures Without Consent of Holders..... 40
Section 9.02. Supplemental Indentures With Consent of Holders........ 41
Section 9.03. Execution of Supplemental Indentures................... 42
Section 9.04. Effect of Supplemental Indentures...................... 43
-ii-
Page
----
Section 9.05. Conformity with Trust Indenture Act.................... 43
Section 9.06. Reference in Securities to Supplemental Indentures..... 43
ARTICLE X Covenants...................................................... 43
Section 10.01. Payments............................................... 43
Section 10.02. Maintenance of Office or Agency........................ 43
Section 10.03. Money for Security Payments to be Held in Trust........ 44
Section 10.04. Statement by Officers as to Default.................... 45
Section 10.05. Existence.............................................. 45
Section 10.06. Further Instruments and Acts........................... 45
Section 10.07. Reports and Delivery of Information.................... 45
Section 10.08. Resale of Certain Securities........................... 46
Section 10.09. Book-Entry System...................................... 46
Section 10.10. Additional Interest Under the Registration Rights
Agreement........................................... 47
Section 10.11. Information for IRS Filings............................ 47
Section 10.12. Limit on Incurring Additional Indebtedness and Liens... 47
Section 10.13. Requirement to Seek Stockholder Approval............... 48
ARTICLE XI Redemption Prior to Maturity; Repurchase Upon A Fundamental
Change................................................................ 48
Section 11.01. Company's Right to Redeem; Notices to Trustee.......... 48
Section 11.02. Selection of Securities to be Redeemed................. 48
Section 11.03. Notice of Redemption................................... 49
Section 11.04. Effect of Notice of Redemption......................... 50
Section 11.05. Holder's Right to Require Redemption................... 50
Section 11.06. Notice of Right to Require Redemption.................. 50
Section 11.07. Redemption by Holder................................... 51
Section 11.08. Deposit of Redemption Price............................ 51
Section 11.09. Securities Redeemed in Part............................ 51
Section 11.10. Repurchase of Securities at Option of the Holder Upon
Fundamental Change.................................. 52
Section 11.11. Effect of Fundamental Change Repurchase Notice......... 54
Section 11.12. Securities Repurchased in Whole or in Part............. 55
Section 11.13. Covenant to Comply With Securities Laws Upon Repurchase
of Securities....................................... 56
Section 11.14. Deposit of Fundamental Change Repurchase Price......... 56
Section 11.15. Repayment to the Company............................... 56
ARTICLE XII Interest Payments on the Securities.......................... 56
Section 12.01. Interest Rate.......................................... 56
ARTICLE XIII Conversion.................................................. 57
Section 13.01. Conversion Privilege................................... 57
Section 13.02. Conversion Procedure................................... 58
Section 13.03. No Fractional Shares................................... 60
Section 13.04. Taxes on Conversion.................................... 60
Section 13.05. Company to Provide Stock............................... 60
Section 13.06. Adjustment of Conversion Price......................... 61
-iii-
Page
----
Section 13.07. Conversion After a Public Acquirer Change of Control... 65
Section 13.08. No Adjustment.......................................... 66
Section 13.09. Notice of Conversion Price Adjustment.................. 67
Section 13.10. Notice of Certain Transactions......................... 67
Section 13.11. Effect of Reclassification, Consolidation, Merger or
Sale on Conversion Privilege........................ 68
Section 13.12. Trustee's Disclaimer................................... 68
Section 13.13. Voluntary Decrease..................................... 69
Section 13.14. Company Determination Final............................ 69
ARTICLE XIV Make-Whole Premium........................................... 69
Section 14.01. Make-Whole Premium..................................... 69
Section 14.02. Adjustment to the Make-Whole Premium................... 72
EXHIBITS:
Exhibit A Form of Face of Security
Exhibit B Form of Reverse of Security
Exhibit C Form of Trustee's Certificate of Authentication
Exhibit D Fundamental Change Repurchase Notice
-iv-
INDENTURE, dated as of December 15, 2006, between Xxxxx & Wesson
Holding Corporation, a corporation duly organized and existing under the laws of
the State of Nevada, as Issuer (the "COMPANY"), having its principal office at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and The Bank of New
York Trust Company, N.A., as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 4%
Senior Convertible Notes Due 2026 (each a "SECURITY" and collectively, the
"SECURITIES") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid and legally binding obligations of the Company, and to make
this Indenture a valid and legally binding agreement of the Company, in
accordance with the terms of the Securities and the Indenture, have been done.
Further, all things necessary to duly authorize the issuance of the Common Stock
of the Company issuable upon the conversion of the Securities, and to duly
reserve for issuance the number of shares of Common Stock issuable upon such
conversion, have been done.
AGREEMENT:
For and in consideration of the premises and the purchases of the
Securities by the Holders thereof, it is mutually agreed, for the benefit of the
Company and the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein and not otherwise defined that
are defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(d) the words "herein," "hereof' and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
1
"ACT," when used in respect of any Holder, has the meaning specified
in Section 1.04.
"ADDITIONAL INTEREST" has the meaning specified in the Registration
Rights Agreement.
"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 in respect of any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"AGENT MEMBERS" has the meaning specified in Section 3.08.
"APPROVED STOCK PLAN" means any (a) presently existing employee,
director or consultant benefit plan or program or employee stock purchase plan
of the Company or any of its Subsidiaries or (b) agreement or employee benefit
plan which has been approved by the Board of Directors of the Company, pursuant
to which the Company's securities may be issued to any employee, officer or
director for services provided to the Company.
"BOARD OF DIRECTORS" means, in respect of any Person, either the board
of directors of such Person or any duly authorized committee of that board.
"BOARD RESOLUTION" means, in respect of any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York or the city in which the
Corporate Trust Office is located are authorized or obligated by law, or
executive order or governmental decree to be closed.
"BUY-IN" has the meaning specified in Section 13.02(c).
"BUY-IN PRICE" has the meaning specified in Section 13.02(c).
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, in respect of partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"CHANGE OF CONTROL" shall be deemed to have occurred if any of the
following occurs after the date hereof:
2
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the Company's assets to any person or group of related persons
(other than to any of the Company's wholly owned Subsidiaries);
(2) the approval by the holders of the Company's Capital Stock of
any plan or proposal for the liquidation or dissolution of the Company;
(3) if any person or group shall become the beneficial owner,
directly or indirectly, of shares representing more than 50% of the
aggregate ordinary voting power represented by issued and outstanding
voting stock of the Company;
(4) at any time the following persons cease for any reason to
constitute a majority of the Company's Board of Directors: (i) individuals
who on the date hereof constituted the Company's Board of Directors and
(ii) any other new directors whose appointment to the Company's Board of
Directors or whose nomination for election by the Company's stockholders
was approved by at least a majority of the directors of the Company then
still in office either (A) who were directors of the Company on the date
hereof, or (B) whose appointment or nomination for election was previously
so approved; or
(5) any consolidation or merger by the Company where persons who
are beneficial owners, directly or indirectly, of the Company's shares of
voting stock immediately prior to such transaction no longer beneficially
own, directly or indirectly, at least a majority of the aggregate ordinary
voting power represented by issued and outstanding voting stock of the
continuing or surviving corporation or entity.
For purposes of the definition of Change of Control: (i) "PERSON" or "GROUP"
have the meanings given to them for purposes of Sections 13(d) and 14(d) of the
Exchange Act or any successor provisions, and the term "group" includes any
group acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor
provision); (ii) a "BENEFICIAL OWNER" will be determined in accordance with Rule
13d-3 under the Exchange Act, as in effect on the date of this Indenture; (iii)
"BENEFICIALLY OWNED" and "BENEFICIALLY OWN" have meanings correlative to that of
beneficial owner; and (iv) "VOTING STOCK" means any class or classes of Capital
Stock pursuant to which the holders of Capital Stock under ordinary
circumstances have the power to vote in the election of the board of directors,
managers or trustees of any Person or other Persons performing similar functions
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.
Notwithstanding anything in this Indenture to the contrary, a merger or
consolidation shall not be deemed to constitute a "Change of Control" if at
least 90% of the consideration (excluding cash payments for fractional shares
and cash payments pursuant to dissenters' appraisal rights) in the merger or
consolidation consists of shares of Capital Stock that are listed on, or
immediately after the transaction will be listed on, any Eligible Market and as
a result of such transaction the obligations of the Company under the Securities
and this Indenture are expressly assumed by the Person issuing such
consideration in such merger or consolidation and any Securities surrendered for
conversion would become convertible into such publicly traded securities.
3
"CLOSING PRICE" means, for any security as of any date, the last
closing trade price for such security on the principal United States securities
market on which such security is traded (which is currently The NASDAQ Global
Select Market in respect of the Common Stock) as reported by Bloomberg Financial
Markets (or any successor thereto, "BLOOMBERG"), or, if such exchange begins to
operate on an extended hours basis and does not designate the closing bid price
or the closing trade price, as the case may be, then the last bid price or last
trade price, respectively, of such exchange prior to 4:00:00 p.m. (New York City
time) as reported by Bloomberg, or, if such exchange is not the principal
securities exchange or trading market for such security, the last trade price of
such security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg, or if the foregoing do
not apply, the last trade price of such security in the over-the-counter market
on the electronic bulletin board for such security as reported by Bloomberg, or,
if no last trade price is reported for such security by Bloomberg, the average
of the highest bid prices and the lowest ask prices of any market makers for
such security in the "pink sheets" by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.). If the Closing Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Price
of such security on such date shall be the fair market value as mutually
determined by the Company and the Majority Holders.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON EQUITY" of any Person means Capital Stock of such Person that
is generally entitled to (a) vote in the election of directors of such Person or
(b) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management or policies of such Person.
"COMMON STOCK" means the shares of Common Stock, par value $0.001 per
share, of the Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed or, in the event of a merger, consolidation or other
similar transaction involving the Company that is otherwise permitted hereunder
in which the Company is not the surviving corporation, the common stock, common
equity interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its direct
or indirect parent corporation.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REDEMPTION DATE" means each date when, pursuant to the
provisions of Section 11.01, the Company elects to redeem the Securities in
whole or in part.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the
4
Board, its President or any Vice President, and by its Chief Financial Officer,
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"CONVERSION AGENT" means the Trustee or such other office or agency
designated by the Company with notice provided to the Holders where Securities
may be presented for conversion.
"CONVERSION AMOUNT" has the meaning specified in Section 13.01(c).
"CONVERSION DATE" has the meaning specified in Section 13.02(a).
"CONVERSION FAILURE" has the meaning specified in Section 13.02(c).
"CONVERSION LIMITATION" has the meaning specified in Section 13.02(i).
"CONVERSION PRICE" has the meaning specified in Section 13.01(c).
"CONVERSION RATE" has the meaning specified in Section 13.01(c).
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attn: Corporate
Trust Services.
"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
"CREDIT FACILITY" means that Amended and Restated Loan and Security
Agreement, dated November 8, 2006 among the Company, as guarantor, Xxxxx &
Wesson Corp., as borrower, and TD Banknorth, N.A., as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time; provided, however, that the aggregate outstanding amount of such
Indebtedness (taking into account the maximum amounts which may be advanced
under the Credit Facility) does not at any time exceed $62,000,000.
"CURRENT MARKET PRICE PER SHARE OF COMMON STOCK" has the meaning
specified in Section 13.06(f).
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would become an Event of Default.
"DEPOSITARY" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"EFFECTIVE DATE" has the meaning specified in Section 14.01(c).
"ELIGIBLE MARKET" means The New York Stock Exchange, the American
Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market.
5
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXCLUDED SECURITIES" means issuances of any shares of Common Stock
(i) pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Common Stock under any plan; (ii)
pursuant to any Approved Stock Plan; (iii) pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in
clause (ii) above and outstanding as of the Issue Date (provided that the terms
of such option, warrant, right or security are not amended or modified with
respect to exercise price or number of shares after the Issue Date); (iv) for a
change in the par value of the Common Stock; and (v) for any Make-Whole Premium
described in Article XIV.
"EXPIRATION DATE" has the meaning specified in Section 13.06(e).
"EXPIRATION TIME" has the meaning specified in Section 13.06(e).
"FUNDAMENTAL CHANGE" means the occurrence of a Change in Control or a
Termination of Trading.
"FUNDAMENTAL CHANGE COMPANY NOTICE" has the meaning specified in
Section 11.10(b).
"FUNDAMENTAL CHANGE CONVERSION" has the meaning specified in Section
13.02(e).
"FUNDAMENTAL CHANGE CONVERSION/REPURCHASE PERIOD" has the meaning
specified in Section 11.10(c).
"FUNDAMENTAL CHANGE REPURCHASE" has the meaning specified in Section
11.10(a).
"FUNDAMENTAL CHANGE REPURCHASE NOTICE" has the meaning specified in
Section 11.10(c).
"FUNDAMENTAL CHANGE REPURCHASE PRICE" has the meaning specified in
Section 11.10(a).
"FUNDAMENTAL CHANGE SETTLEMENT DATE" means the Effective Date for a
Fundamental Change. In respect of any Fundamental Change Conversion or
Fundamental Change Repurchase for which a Notice of Conversion or Fundamental
Change Repurchase Notice, as applicable, has been delivered after the Effective
Date (and during the Fundamental Change Conversion/Repurchase Period), the
Fundamental Change Settlement Date shall mean the date that is two Business Days
following the end of the Fundamental Change Conversion/Repurchase Period.
6
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, in each case, as in effect in the United States on the date hereof.
"GLOBAL SECURITY" means a Security in global form registered in the
Security Register in the name of a Depositary or a nominee thereof.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security
is registered in the Security Register.
"HOLDER REDEMPTION DATE" has the meaning specified in Section 11.05.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"INITIAL PURCHASERS" means Highbridge International LLC, [add names of
other buyers].
"INTEREST" means, when used with reference to the Securities, any
interest payable under the terms of the Securities, including Additional
Interest, if any, payable under the terms of the Registration Rights Agreement.
"INTEREST EXPENSE" means, in respect of the Company for any applicable
period, gross interest expense of the Company for such period determined in
accordance with GAAP, plus, to the extent not included in such interest expense,
any amount of interest capitalized in accordance with GAAP during the same
period.
"INTEREST PAYMENT DATE" means June 15 and December 15, commencing June
15, 2007.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940 and
any successor statute thereto, in each case as amended from time to time.
"ISSUE DATE" means the date the Securities are originally issued as
set forth on the face of the Security under this Indenture.
"LTM EBITDA" means, in respect of the Company as of any date, the Net
Income of the Company for the immediately preceding twelve month period (the
"LTM PERIOD") for which financials are publicly available, plus without
duplication, the sum of the following amounts to the extent deducted in
determining Net Income of the Company for such period: (1) Interest Expense, (2)
income tax expense, and (3) depreciation and amortization expense (excluding
amortization expense attributable to a prepaid item that was paid in cash in a
7
prior period), and minus, one-time or non-cash gains, including but not limited
to (1) gains generated from disposition of assets, (2) gains resulted from
reversal of charges, (3) gains resulted from change of estimates, (4) gains
resulted from change of actuarial assumptions, or (5) extraordinary
non-recurring gains. In connection with acquisitions consummated subsequent to
the commencement of an LTM Period, LTM EBITDA shall be calculated for any such
acquisition on a pro forma basis for such LTM Period.
"MAJORITY OWNER" of a Person means the Person having "beneficial
ownership" (as defined in Rule 13(d)(3) under the Exchange Act) of more than 50%
of the total voting power of all shares of the respective Person's Common
Equity.
"MAKE-WHOLE PREMIUM" has the meaning specified in Section 14.01(c).
"MAKE-WHOLE PREMIUM TABLE" has the meaning specified in Section
14.01(c)
"MATURITY," when used in respect of any Security, means the date on
which the principal, the Redemption Price or the Fundamental Change Repurchase
Price of such Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity, on a Redemption Date or a Fundamental Change
Repurchase Date, or by declaration of acceleration or otherwise.
"NET INCOME" means, in respect of the Company for any applicable
period, the net income (loss) of the Company for such period, determined on a
consolidated basis and in accordance with GAAP.
"NOTICE OF CONVERSION" has the meaning specified in Section 13.02(a).
"NOTICE OF DEFAULT" has the meaning specified in Section 5.01(d).
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the President or any Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
external or in-house counsel for the Company.
"OUTSTANDING" when used in respect of Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except: (i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities, or
portions thereof, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given to the Holders
as herein provided, or provision satisfactory to a Responsible Officer of the
Trustee shall have been made for giving such notice; and (iii) Securities that
have been paid or in exchange for
8
or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture; provided, however, that, in determining whether the
Holders of the requisite Principal Amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act in respect of such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person (including the Company) authorized by
the Company to pay the principal of and interest to the Holders, including the
Redemption Price or the Fundamental Change Repurchase Price on behalf of the
Company. The Trustee shall initially be the Paying Agent.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PHYSICAL SECURITIES" means permanent certificated Securities in
registered form issued in denominations of $1,000 Principal Amount and integral
multiples thereof.
"PRINCIPAL AMOUNT" of a Security means the Principal Amount as set
forth on the face of the Security.
"PUBLIC ACQUIRER CHANGE OF CONTROL" means a Fundamental Change of the
type set forth in clauses (1) or (5) in the definition of Change of Control
(after giving effect to the last paragraph of the definition) in which the
acquirer (the "PUBLIC ACQUIRER") has a class of common stock traded on an
Eligible Market which will be so traded when issued or exchanged in connection
with such Fundamental Change (the "PUBLIC ACQUIRER COMMON STOCK"). If an
acquirer does not itself have a class of common stock satisfying the foregoing
requirement, it shall be deemed to have Public Acquirer Common Stock if a
corporation that directly or indirectly is the Majority Owner of the acquirer
has a class of common stock satisfying the foregoing requirement; in such case,
all references to Public Acquirer Common Stock shall refer to such class of
common stock.
"PURCHASED SHARES" has the meaning specified in Section 13.06(e).
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A.
"RECORD DATE" for the interest payable on any Interest Payment Date
means each June 1 and December 1 (whether or not a Business Day) next preceding
such Interest Payment Date.
9
"REDEMPTION DATE" means any Company Redemption Date or Holder
Redemption Date.
"REDEMPTION PRICE" means the Principal Amount of the Securities to be
redeemed together with accrued and unpaid interest to, but excluding, the
applicable Redemption Date.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of December 15, 2006, by and among the Company and the
Initial Purchasers, for the benefit of themselves and the Holders, as the same
may be amended or modified from time to time in accordance with the terms
thereof.
"RESPONSIBLE OFFICER" means any officer of the Trustee with direct
responsibility for the administration of this Indenture and also, in respect of
a particular matter, any other officer of the Trustee to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"RESTRICTED GLOBAL SECURITY" means a Global Security representing
Restricted Securities.
"RESTRICTED SECURITY" or "RESTRICTED SECURITIES" has the meaning
specified in Section 2.05.
"RIGHTS PLAN" has the meaning specified in Section 13.06(c).
"RULE 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"RULE 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"RULE 144A INFORMATION" has the meaning specified in Section 10.07(b).
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SECURITY" or "SECURITIES" has the meaning specified in the first
paragraph of the Recitals of the Company.
"SECURITIES PURCHASE AGREEMENT" means the Securities Purchase
Agreement, dated as of December 15, 2006, entered into by and among the Company
and the Initial Purchasers in connection with the sale of the Securities.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05(a).
"SHARE DELIVERY DATE" has the meaning specified in Section 13.02(b).
10
"SHELF REGISTRATION STATEMENT" means a registration statement under
the Securities Act registering the Securities and the Common Stock issuable on
conversion thereof for resale pursuant to the terms of the Registration Rights
Agreement.
"STATED MATURITY," when used in respect of any Security, means the
date specified in such Security as the fixed date on which an amount equal to
the principal amount of such Security together with accrued and unpaid interest
and Additional Interest, if any, is due and payable.
"STOCK PRICE" has the meaning specified in Section 14.01(c).
"STOCK PRICE CAP" has the meaning specified in Section 14.01(c).
"STOCK PRICE THRESHOLD" has the meaning specified in Section 14.01(c).
"STOCKHOLDER APPROVAL" has the meaning specified in Section 10.13.
"SUBSCRIPTION DATE" means December 15, 2006.
"SUBSIDIARY" means, in respect of any Person, (a) any corporation,
association or other business entity of which 50% or more of the total voting
power of shares of capital stock or other equity interest entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person (or a combination thereof) and (b) any partnership (i) the sole
general partner or managing general partner of which is such Person or a
subsidiary of such Person or (ii) the only general partners of which are (a)
such Person or (b) one or more subsidiaries of such Person (or any combination
thereof).
"SURVIVING ENTITY" has the meaning specified in Section 8.01(a).
"TERMINATION OF TRADING" means that the Common Stock or other
securities into which the Securities are convertible are not listed for trading
on an Eligible Market.
"TRADING DAY" means (a) if the applicable security is listed or
admitted for trading on an Eligible Market, a day on which such Eligible Market
is open for business or (b) if the applicable security is not so listed,
admitted for trading or quoted, any Business Day.
"TRANSFER" for purposes of Section 3.05, has the meaning specified in
Section 3.05.
"TRANSFER RESTRICTED SECURITY" means a Security required to bear the
restricted legend set forth in the form of Security set forth as Exhibit A
attached hereto.
"TRIGGER EVENT" has the meaning specified in Section 13.06(c).
"TRIGGERING DISTRIBUTION" has the meaning specified in Section
13.06(d).
11
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as in
effect on the date as of which this Indenture was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UNITED STATES" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction (its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
"VICE PRESIDENT" when used in respect of the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"WEIGHTED AVERAGE PRICE" means, as determined by the Company, for any
security as of any date, the dollar volume-weighted average price for such
security on the principal market or exchange on which such security is traded
during the period beginning at 9:30:01 a.m., New York City time (or such other
time as such principal market or exchange publicly announces is the official
open of trading), and ending at 4:00:00 p.m., New York City time (or such other
time as such principal market or exchange publicly announces is the official
close of trading) as reported by Bloomberg through its "Volume at Price"
functions, or, if the foregoing does not apply, the dollar volume-weighted
average price of such security in the over-the-counter market on the electronic
bulletin board for such security during the period beginning at 9:30:01 a.m.,
New York City time (or such other time as such market publicly announces is the
official open of trading), and ending at 4:00:00 p.m., New York City time (or
such other time as such market publicly announces is the official close of
trading) as reported by Bloomberg, or, if no dollar volume-weighted average
price is reported for such security by Bloomberg for such hours, the average of
the highest closing bid price and the lowest closing ask price of any of the
market makers for such security as reported in the "pink sheets" by Pink Sheets
LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average
Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Weighted Average Price of such security on such date shall
be the fair market value as mutually determined by the Company and the Majority
Holders. All such determinations shall be appropriately adjusted for any stock
dividend, stock split, stock combination or other similar transaction during the
applicable calculation period.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate to the effect that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and an Opinion of Counsel
to the effect that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
12
Every certificate or opinion in respect of compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion in respect of some matters and one or more other such Persons as
to other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
in respect of the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information in respect of such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations in respect of such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Dates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by 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 in accordance with
Section 1.05 and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as an
13
"ACT" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee reasonably deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 1.05. Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing and mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
14
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company, Attention:
Secretary.
Notwithstanding anything to the contrary contained herein, notice to
the Trustee shall be effective only upon actual receipt by the Trustee.
Section 1.06. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice in respect of other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Whenever under this Indenture the Trustee is required to provide any
notice by mail, in all cases the Trustee may alternatively provide notice by
overnight courier or by telefacsimile, with confirmation of transmission.
Section 1.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required hereunder to be a part of and govern this Indenture, the
provision of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of the Trust Indenture Act shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof, and all Article and Section
references are to Articles and Sections, respectively, of this Indenture unless
otherwise expressly stated.
Section 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.10. Severability 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.
15
Section 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law. This Indenture and the Securities shall
be governed by and construed in accordance with the laws of the State of New
York.
Section 1.13. Legal Holiday. In any case where any Interest Payment
Date, Stated Maturity or Redemption Date of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, at the Stated Maturity or on the
Redemption Date; provided, that no interest shall accrue in respect of such
payment for the period from and after such Interest Payment Date, Stated
Maturity or Redemption Date, as the case may be.
ARTICLE II
SECURITY FORMS
Section 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Internal Revenue Code of 1986,
as amended, and regulations thereunder, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
The Securities shall initially be issued in the form of permanent
Global Securities in registered form in substantially the form set forth in this
Article. The aggregate Principal Amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as hereinafter provided.
Section 2.02. Form of Face of Security. The face of each Security
shall be substantially in the form of Exhibit A attached hereto.
Section 2.03. Form of Reverse of Security. The reverse of each
Security shall be substantially in the form of Exhibit B attached hereto.
Section 2.04. Form of Trustee's Certificate of Authentication. No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form of Exhibit C attached hereto.
16
Section 2.05. Legend on Restricted Securities. During the period
beginning on the Issue Date and ending on the date two years from such date, any
Security, including any Security issued in exchange therefor or in lieu thereof,
shall be deemed a "RESTRICTED SECURITY" and shall be subject to the restrictions
on transfer provided in the legends set forth on the face of the form of
Security attached hereto as Exhibit A; provided, however, that the term
"Restricted Security" shall not include any Securities as to which restrictions
have been terminated in accordance with Section 3.05. All Securities shall bear
the applicable legends set forth on the face of the form of Security attached
hereto as Exhibit A. Except as provided in Section 3.05 and Section 3.09, the
Trustee shall not issue any unlegended Security until it has received an
Officers' Certificate from the Company directing it to do so.
ARTICLE III
THE SECURITIES
Section 3.01. Title and Terms. The aggregate Principal Amount of
Securities that may be authenticated and delivered under this Indenture is
initially limited to $80,000,000, except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.04, 3.05, 3.06, or 9.06. Other than as
set forth in the preceding sentence, the Company shall not issue any Securities
under this Indenture.
The Securities shall be known and designated as the "4% SENIOR
CONVERTIBLE NOTES DUE 2026" of the Company. The Principal Amount shall be
payable at the Stated Maturity or, at the election of the Holder or the Company,
at a Redemption Date as provided for under this Indenture.
The Principal Amount, accrued interest and Additional Interest, if
any, on the Securities shall be payable at the office or agency of the Company
in The City of New York maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; provided, however, that at
the option of the Company payments may be made by wire transfer or by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall not have the benefit of a sinking fund.
The Securities shall be superior in right of payment to all
subordinated indebtedness of the Company, and shall rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company.
Section 3.02. Denominations. The Securities shall be issuable only in
registered form without coupons and in denominations of $1,000 and any integral
multiple of $1,000 above that amount.
Section 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents.
17
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities. The Company Order shall specify
the amount of Securities to be authenticated, and shall further specify the
amount of such Securities to be issued as a Global Security or as Physical
Securities. The Trustee in accordance with such Company Order shall authenticate
and deliver such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Section 3.04. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like Principal Amount of definitive Securities of
authorized denominations. Until so exchanged, the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
Section 3.05. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the "SECURITY
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed security registrar (the "SECURITY
REGISTRAR") for the purpose of registering Securities and transfers of
Securities as herein provided.
18
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Company shall execute, and, upon receipt of a Company Order, the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate Principal Amount and tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including Sections
2.02, 2.05 and 3.09).
At the option of the Holder and subject to the other provisions of
this Section 3.05 and to Section 3.09, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate Principal
Amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing. As a condition to the
registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.
Except as provided in the following sentence and in Section 3.09, all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and shall bear the legend required by Sections 2.02 and 2.05, unless
the Company shall have delivered to the Trustee (and the Security Registrar, if
other than the Trustee) a Company Order stating that the Security is not a
Restricted Security and may be issued without such legend thereon. Securities
which are issued upon registration of transfer of, or in exchange for,
Securities which are not Restricted Securities shall not be Restricted
Securities and shall not bear such legend.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04 not involving any transfer.
The Company shall not be required to exchange or register a transfer
of any Security (i) during the 15-day period immediately preceding the mailing
of any Notice of Redemption Right of any Security, (ii) after any Notice of
Redemption Right has been given by
19
any Holders, except, where such notice provides that such Security is to be
redeemed only in part, the Company shall be required to exchange or register a
transfer of the portion thereof not to be redeemed, (iii) that has been
surrendered for conversion or (iv) as to which a Fundamental Change Repurchase
Notice has been delivered and not withdrawn, except, where such Fundamental
Change Repurchase Notice provides that such Security is to be purchased only in
part, the Company shall be required to exchange or register a transfer of the
portion thereof not to be purchased.
(b) Beneficial ownership of every Restricted Security shall be
subject to the restrictions on transfer provided in the legends required to be
set forth on the face of each Restricted Security pursuant to Sections 2.02 and
2.05, unless such restrictions on transfer shall be terminated in accordance
with this Section 3.05(b) or Section 3.09. The Holder of each Restricted
Security, by such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer.
The restrictions imposed by this Section 3.05 and by Sections
2.02, 2.05 and 3.09 upon the transferability of any particular Restricted
Security shall cease and terminate upon delivery by the Company to the Trustee
of an Officers' Certificate stating that such Restricted Security has been sold
pursuant to an effective Shelf Registration Statement under the Securities Act
or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto). Any Restricted Security as to which the Company
has delivered to the Trustee an Officers' Certificate that such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon surrender of such Restricted Security for exchange to the
Security Registrar in accordance with the provisions of this Section 3.05, be
exchanged for a new Security, of like tenor and aggregate Principal Amount,
which shall not bear the restrictive legends required by Sections 2.02 and 2.05.
The Company shall inform the Trustee in writing of the effective date of any
Shelf Registration Statement registering the Securities under the Securities
Act. The Trustee shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance with the aforementioned Shelf Registration
Statement.
As used in the preceding two paragraphs, the term "TRANSFER"
encompasses any sale, pledge, transfer or other disposition of any Restricted
Security.
(c) Neither the Trustee nor any of its agents shall (i) have any
duty to monitor compliance with or in respect of any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation relating to
any transfers or exchanges other than as specifically required hereunder.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and Principal Amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in
20
the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon receipt
of a Company Order, the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor and
Principal Amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable or has been called for redemption
in full, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section 3.06, the
Company may require payment by the Holder 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 3.06 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies in respect of the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
the principal of and interest and Additional Interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee, or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 3.08. Book-Entry Provisions for Global Securities. (a) The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for the Depositary and (iii) bear legends as set forth on the face
of the form of Security in Section 2.02.
(b) Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture in respect of any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of any Holder.
21
(c) Transfers of the Global Securities shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Security may be
transferred or exchanged, in whole or in part, for Physical Securities in
accordance with the rules and procedures of the Depositary and the provisions of
Section 3.09. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Securities if (A) such Depositary has notified the Company (or the Company
becomes aware) that the Depositary (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act when the Depositary is required to be so
registered to act as such Depositary and, in either such case, no successor
Depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of such event; or (B) there shall have occurred and
be continuing an Event of Default in respect of such Global Security and the
Outstanding Securities shall have become due and payable pursuant to Section
5.02 and the Trustee requests that Physical Securities be issued; provided that
Holders of Physical Securities offered and sold in reliance on Rule 144A shall
have the right, subject to applicable law, to request that such Securities be
exchanged for interests in the applicable Global Security.
(d) In connection with any transfer or exchange of a portion of
the beneficial interest in the Global Security to beneficial owners pursuant to
clause (c) of this Section 3.08, the Security Registrar shall (if one or more
Physical Securities are to be issued) reflect on its books and records the date
and a decrease in the Principal Amount of the Global Security in an amount equal
to the Principal Amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and, upon receipt of a Company
Order, the Trustee shall authenticate and deliver, one or more Physical
Securities of like tenor and amount.
(e) In connection with the transfer of the entire Global Security
to beneficial owners pursuant to clause (c) of this Section 3.08, the Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and, upon receipt of a Company Order, the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security, an
equal aggregate Principal Amount of Physical Securities of authorized
denominations and the same tenor.
(f) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in the Global Security pursuant to clause
(c) or (d) of this Section 3.08 shall, except as otherwise provided by clause
(c) of Section 3.09, bear the legend regarding transfer restrictions applicable
to the Physical Securities set forth on the face of the form of Security in
Section 2.02.
(g) The Holder of the Global Securities may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
22
(h) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in, the
Depositary, or other Person in respect of the accuracy of the books or records,
or the acts or omissions, of the Depositary or its nominee or of any participant
or member thereof, in respect of any ownership interest in the Securities or in
respect of the delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or in respect of such
Securities. All notices and communications to be given to the Holders and all
payment to be made to Holders under the Securities shall be given or made only
to or upon the order of the registered Holders (which shall be the Depositary or
its nominee in the case of a Global Security). The rights of beneficial owners
in any Global Security shall be exercised only through the Depositary subject to
the applicable procedures of the Depositary. The Trustee may rely on information
furnished by the Depositary in respect of its members, participants and any
beneficial owners.
Section 3.09. Cancellation and Transfer Provisions. The Company at any
time may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Trustee shall cancel and dispose of all Securities surrendered for
registration of transfer, exchange, payment, purchase, repurchase, redemption,
conversion (pursuant to Article XIII hereof) or cancellation in accordance with
its customary practices. If the Company shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the Trustee
for cancellation.
(a) Transfers to QIBs. The following provisions shall apply in
respect of the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB:
(i) the Security Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that it is purchasing
the Security for its own account or an account in respect of which it exercises
sole investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after transfer
are to be evidenced by an interest in the Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the Depositary's and
the Security Registrar's procedures, the Security
23
Registrar shall reflect on its books and records the date and an increase in the
Principal Amount of the Global Security in an amount equal to the Principal
Amount of the Physical Securities to be transferred, and the Trustee shall
cancel the Physical Securities so transferred.
(b) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the legends required by
Sections 2.02 and 2.05, the Security Registrar shall deliver Securities that do
not bear such legends. Upon the registration of transfer, exchange or
replacement of Securities bearing the legends required by Sections 2.02 and
2.05, the Security Registrar shall deliver only Securities that bear such
legends unless the Company has notified the Trustee in writing that the Shelf
Registration Statement has been declared effective or there is delivered to the
Security Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(c) General. By its acceptance of any Security bearing the
legends required by Sections 2.02 and 2.05, each Holder of such a Security
acknowledges the restrictions on transfer of such Security set forth in this
Indenture and in such legends and agrees that it will transfer such Security
only as provided in this Indenture.
The Security Registrar shall retain, in accordance with its
customary procedures, copies of all letters, notices and other written
communications received pursuant to this Section 3.09. The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law in respect of any transfer of any
interest in any Security (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 3.10. CUSIP Numbers. In issuing the Securities, the Company
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices delivered, and as a convenience, to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in the
"CUSIP" numbers.
24
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and other surviving rights discussed below), and the Trustee, on demand of and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (B) Securities for
whose payment money has theretofore been deposited with the Trustee in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in Section 10.03) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company has
deposited or caused to be deposited funds with the Trustee in trust and for the
purpose and in an amount sufficient to pay and discharge the entire indebtedness
evidenced by such Securities not theretofore delivered to the Trustee for
cancellation;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to clause (a)(ii) of Section
4.01, the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03 shall survive such satisfaction and discharge.
Section 4.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee.
25
ARTICLE V
REMEDIES
Section 5.01. Events of Default. "EVENT OF DEFAULT" wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) the Company's (i) failure to cure a Conversion Failure by
delivery of the required number of shares of Common Stock within ten Business
Days after the applicable Conversion Date or (ii) notice, written or oral, to
any Holder, including by way of public announcement or through any of its
agents, at any time, of its intention not to comply with a request for
conversion of any Securities into shares of Common Stock that is tendered in
accordance with the provisions of this Indenture; or
(b) default in the payment of interest (including Additional
Interest, if any) on any Securities when due and payable and such default
continues for a period of 30 days; or
(c) default in the payment of the Principal Amount, the
Redemption Price or the Fundamental Change Repurchase Price on any Security when
it becomes due and payable; or
(d) default in the performance of any covenant, agreement or
condition of the Company in this Indenture or the Securities (other than a
default specified in clauses (a) through (c) above), and such default continues
for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate Principal Amount of the Outstanding
Securities a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "NOTICE OF DEFAULT" hereunder; or
(e) default by the Company or any Subsidiary in the payment of
the principal or interest on any loan agreement or other instrument under which
there may be outstanding, or by which there may be evidenced, any indebtedness
for money borrowed in excess of $10 million in the aggregate of the Company and
any Subsidiary (other than indebtedness for borrowed money secured only by the
real property to which the indebtedness relates and which is non-recourse to the
Company or to such Subsidiary), whether such indebtedness now exists or shall
hereafter be created, resulting in such indebtedness becoming or being declared
due and payable prior to its stated maturity, and such acceleration shall not
have been rescinded or annulled within 30 days after written notice has been
received by the Company or such Subsidiary from the Trustee or by the Trustee,
the Company and such Subsidiary by the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities; or
(f) the entry against the Company or any of its Subsidiaries of a
final judgment or judgments (not subject to appeal and not covered by insurance)
aggregating in
26
excess of $10 million which judgments remain unpaid, unstayed, undischarged or
unbonded for a period of 60 days; or
(g) failure by the Company to give the Fundamental Change Company
Notice pursuant to Section 11.10 or the Public Acquirer Change of Control Notice
pursuant to Section 13.07; or
(h) failure on the part of the Company to duly observe and comply
with the limitations on Indebtedness and liens set out in Section 10.12 and such
failure continues for a period of 30 days following the occurrence thereof or,
if later, the date the Company knows or should have known of such failure; or
(i) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company or any Subsidiary of
a voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (ii) a decree or order
adjudging the Company or any Subsidiary as 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 Subsidiary under any
applicable Federal or State law or (iii) appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(j) the commencement by the Company or any Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company or any
Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Subsidiary or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any
Subsidiary in furtherance of any such action.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. (a)
If an Event of Default (other than those specified in clauses (i) and (j) of
Section 5.01) occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities may declare the Principal Amount plus accrued and unpaid
interest and Additional Interest, if any, on all the Outstanding Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such Principal
Amount plus accrued and unpaid interest and Additional Interest, if any, shall
become immediately due and payable.
27
Notwithstanding the foregoing, in the case of an Event of Default specified in
clause (i) or (j) of Section 5.01, the Principal Amount plus accrued and unpaid
interest and Additional Interest, if any, on all Outstanding Securities will
ipso facto become due and payable without any declaration or other Act on the
part of the Trustee or any Holder.
(b) At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article V, the Holders
of a majority in aggregate Principal Amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if such rescission and annulment will not
conflict with any judgment or decree of a court of competent jurisdiction and:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on the Securities,
(B) the Principal Amount plus accrued and unpaid
interest and Additional Interest, if any, the Redemption Price or the
Fundamental Change Repurchase Price, as applicable, on any Securities which have
become due otherwise than by such declaration of acceleration, and
(C) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 6.07; and
(ii) all Events of Default, other than the non-payment of
the Principal Amount plus accrued and unpaid interest and Additional Interest,
if any, on Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if a default is made in the payment of the
Principal Amount plus accrued and unpaid interest and Additional Interest, if
any, at the Maturity thereof or in the payment of the Redemption Price or the
Fundamental Change Repurchase Price in respect of any Security, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel. If
an Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy to collect the payment of the
Principal Amount plus accrued but unpaid interest and Additional Interest, if
any, on the Outstanding 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
28
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of, or acquiescence in,
the Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 5.04. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
The Trustee shall be entitled to participate as a member of any
official committee of creditors of the Company as it deems necessary or
advisable.
Section 5.05. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money to Holders, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: To the payment of the amounts then due and unpaid on the
Securities for the Principal Amount, the Redemption Price, the Fundamental
Change Repurchase Price or interest and Additional Interest, if any, as the case
may be, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities; and
THIRD: To the Company.
Section 5.06. Limitation on Suits. No Holder shall have any right to
institute any proceeding, judicial or otherwise, in respect of this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder (other than in the case of an Event of Default specified in clause (i)
or (j) of Section 5.01), unless:
29
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate Principal
Amount of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder and have offered the Trustee indemnity or security
reasonably satisfactory to the Trustee;
(c) the Trustee for 60 days after its receipt of such notice,
request and offer of security or indemnity has failed to institute any such
proceeding; and
(d) no direction, in the opinion of the Trustee, inconsistent
with such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
Section 5.07. Unconditional Right of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount, the Redemption Price, the
Fundamental Change Repurchase Price or interest and Additional Interest, if any,
in respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date or Fundamental Change
Settlement Date, as applicable, and to convert the Securities in accordance with
Article XIII, or to bring suit for the enforcement of any such payment on or
after such respective dates or the right to convert, shall not be impaired or
affected adversely without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. Except as otherwise
provided in respect of the replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The
30
assertion or employment of any right or remedy hereunder shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 5.11. Control by Holders. The Holders of a majority in
Principal Amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee,
provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) the Trustee may refuse to follow any direction that the
Trustee determines may involve the Trustee in personal liability or may be
prejudicial to the rights of the Holders of Securities.
Section 5.12. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate Principal Amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default hereunder and
its consequences, except a Default:
(a) Described in clause (i) or (j) of Section 5.01; or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 5.13. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect of
the Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney's fees, 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; but the provisions of this
Section 5.13 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
31
Holders, holding in the aggregate more than 10% in aggregate Principal Amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Principal Amount or interest and Additional
Interest, if any, on any Security on or after Maturity of such Security, the
Redemption Price or the Fundamental Change Repurchase Price. This Section 5.13
shall be in lieu of Section 315(e) of the Trust Indenture Act and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
Section 5.14. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise such rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise thereof, as a prudent Person would exercise or use under
the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into this
Indenture or the TIA against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, without investigation, as to the truth of the statements
and the correctness of the opinions expressed therein, upon the statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture but need not verify the contents thereof.
However, 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 on their face to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
32
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 6.01;
(ii) 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
(iii) 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 5.02 or Section 5.11.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
Section 6.02. Notice of Defaults. If an Event of Default occurs and is
continuing, the Trustee shall mail to Holders of Securities a 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. Except in the case of a default (x) in
the payment of the principal of or interest on any Security, (y) in the payment
of the Fundamental Change Repurchase Price on the Fundamental Change Settlement
Date, or (z) in the payment or delivery, as the case may be, of cash, Common
Stock or a combination thereof upon conversion of such Security on the date
provided for herein therefor, the Trustee may withhold the notice if and so long
as the board of directors, the executive committee or a trust committee of
directors of the Trustee in good faith determines that withholding the notice is
in the interest of the Holders.
Section 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
33
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit; and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company, and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and shall not be responsible for the negligence or misconduct of such
agents or attorneys appointed with due care;
(h) the Trustee shall not be charged with knowledge of any
Default or Event of Default in respect of the Securities unless either (i) a
Responsible Officer shall have actual knowledge of such Default or Event of
Default or (ii) written notice of such Default or Event of Default shall have
been received by the Trustee from the Company or any other obligor on such
Securities or by any Holder of such Securities;
(i) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
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 each agent, custodian, director, officer,
employee and other Person employed to act hereunder;
(k) the Trustee may request that the Company deliver an Officers'
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 Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(l) the permissive rights of the Trustee to take certain actions
under this Indenture shall not be construed as a duty unless so specified
herein; and
(m) in no event shall the Trustee be responsible or liable for
any failure or delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control, including,
without limitation, strikes, work stoppages,
34
accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
Section 6.04. Not Responsible for Recitals. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Section 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement. The Company agrees:
(a) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as the Company and the Trustee shall from
time to time agree in writing (which compensation shall not be limited 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 and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or willful misconduct; and
(c) to indemnify the Trustee and any predecessor Trustee for, and
to hold it harmless against, any loss, liability 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 reasonable
costs and expenses of defending itself against any claim (whether assessed by
the Company, by any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture. To
35
secure the Company's payment obligations in this Section 6.07, the Trustee shall
have a lien prior to the Securities on all money or property held or collected
by the Trustee, and the money or property held in trust to pay principal,
interest and Additional Interest, if any, on the Securities. Such lien shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture. When the Trustee incurs expenses or renders
services after a Default or an Event of Default specified in clause (i) or (j)
of Section 5.01 occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under Title 11 of the U.S. Code or any
other similar foreign, federal or state law for the relief of debtors.
Section 6.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has, or whose parent
banking company has, a combined capital and surplus of at least $50,000,000;
provided, however, that with respect to American Stock Transfer & Trust Company,
the combined capital and surplus must be at least $10,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 6.09, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article VI shall become effective until the acceptance
of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in aggregate Principal Amount of the Outstanding Securities,
delivered to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee in respect of the Securities.
(d) If at any time:
36
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or
(iv) a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Company Order
may remove the Trustee, or (B) subject to Section 5.13, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Company Order, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in Principal Amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
37
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article VI.
Notwithstanding the resignation or removal of the Trustee, the
Company's obligations under Section 6.07 shall continue for the benefit of the
retiring Trustee in respect of expenses and liabilities incurred by it prior to
such resignation or removal.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee by sale or otherwise, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article VI, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against. If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar; provided,
however, that no such list need be furnished so long as the Trustee is acting as
Security Registrar.
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses
38
of Holders contained in the most recent list furnished to the Trustee as
provided in Section 7.01 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders in
respect of their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.03. Reports By Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Reports so required to be transmitted at
stated intervals of not more than 12 months shall be transmitted no later than
June 30 in each calendar year, commencing in June 30, 2007. Each such report
shall be dated as of a date not more than 60 days prior to the date of
transmission.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange or of any delisting thereof.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc. Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety (the "SURVIVING ENTITY"), (i) shall be either (1) organized and validly
existing under the laws of the United States of America, any State thereof or
the District of Columbia, or (2) organized under the laws of a jurisdiction
outside the United States and has common stock traded on an Eligible Market and
a worldwide total market capitalization of its equity securities before giving
effect to the consolidation or merger of at least $2 billion, and (ii) the
Surviving Entity shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
39
(b) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company or the Surviving Entity has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article VIII and Article IX, respectively.
Section 8.02. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(c) to provide for a successor Trustee in respect of the
Securities; or
(d) to cure any ambiguity or defect, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions in respect of matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided that such action pursuant to this clause (d) shall not
adversely affect the interests of the Holders in any material respect; or
(e) to add any additional Events of Default for the benefit of
the Holders; or
40
(f) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets; or
(g) to decrease the Conversion Price of the Securities; provided,
however, that such decrease shall be in accordance with the terms of this
Indenture or shall not adversely affect the interests of the Holders; or
(h) to supplement any provision of this Indenture to such extent
as shall be necessary to permit or facilitate the discharge of the Securities;
provided that such change or modification does not adversely affect the
interests of the Holders; or
(i) to make any change or modification necessary in connection
with the registration of the Securities under the Securities Act as contemplated
in the Registration Rights Agreement; provided that such change or modification
does not adversely affect the interests of the Holders; or
(j) to add or modify any other provision herein in respect of
matters or questions arising hereunder which the Company and the Trustee may
deem necessary or desirable and which would not reasonably be expected to
adversely affect the interests of the Holders in any material respect.
Section 9.02. Supplemental Indentures With Consent of Holders. With
the consent of the Holders of not less than a majority in aggregate Principal
Amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) reduce the rate of or extend the time for payment of
interest, if any, on the Security; or
(b) reduce the Principal Amount of, or extend the Stated Maturity
of, any Security; or
(c) make any change that impairs or adversely affects the
conversion rights of any Securities; or
(d) reduce the Redemption Price, the Fundamental Change
Repurchase Price of any Security, the Make-Whole Premium or amend or modify in
any manner adverse to the Holders the Company's obligation to make such
payments, whether through an amendment or waiver of provisions in the covenants,
definitions or otherwise; or
(e) modify the provisions in respect of the right of Holders to
cause the Company to redeem Securities on the Redemption Date or to repurchase
Securities upon a Fundamental Change in a manner adverse to Holders; or
41
(f) make any interest or principal on a Security payable in money
other than that stated in the Security or other than in accordance with the
provisions of this Indenture; or
(g) impair the right of any Holder to receive payment of the
Principal Amount of or interest (including Additional Interest, if any), on a
Holder's Securities on or after the due dates therefor or to institute suit for
the enforcement of any payment on or in respect of such Holder's Securities; or
(h) reduce the quorum or voting requirements under this
Indenture; or
(i) change the ranking of the Securities in a manner adverse to
the Holders; or
(j) make any change in the amendment provisions which require
each Holder's consent or in the waiver provisions; or
(k) reduce the percentage in Principal Amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture; or
(l) modify any of the provisions of this Section 9.02 or Section
5.12, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
No consideration shall be offered or paid to any Holder to amend
or consent to a waiver or modification of any provision of any of this Indenture
or the Securities unless the same consideration also is offered to all
Securityholders.
Section 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article IX or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and (subject to Section 6.01)
shall be fully protected in relying upon, in addition to the documents required
by Section 1.02, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. Subject to
the preceding sentence, the Trustee shall sign such supplemental indenture if
the same does not adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that adversely affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
42
Section 9.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX shall bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE X
COVENANTS
Section 10.01. Payments. The Company shall duly and punctually make
all payments in respect of the Securities in accordance with the terms of the
Securities and this Indenture.
Any payments made or due pursuant to this Indenture shall be
considered paid on the applicable date due if by 10:00 a.m., New York City time,
on such date the Paying Agent holds, in accordance with this Indenture, cash
sufficient to pay all such amounts then due. Payment of the Principal Amount and
interest (and Additional Interest, if any), including Redemption Price and
Fundamental Change Repurchase Price, on the Securities shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Section 10.02. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served, which shall initially be at an office of an affiliate
of the Trustee, namely x/x Xxx Xxxx xx Xxx Xxxx at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. The Company shall give prompt written notice to the Trustee of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
43
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Another office and addressee
for purposes hereof shall initially be 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
XX 00000, Attn: Corporate Trust Services.
Section 10.03. Money for Security Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of any payment in respect of any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to make the payment so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of any payment in respect of any Securities, deposit with
a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.03,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability in respect of
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the making of payments in respect of any Security
and remaining unclaimed for two years after such payment has become due shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent in respect of such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper
44
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to the Company. In the absence of a
written request from the Company to return funds remaining unclaimed for two
years after such payment has become due to the Company, the Trustee shall from
time to time deliver all unclaimed payments to or as directed by applicable
escheat authorities, as determined by the Trustee in its sole discretion, in
accordance with the customary practices and procedures of the Trustee. Any such
unclaimed funds held by the Trustee pursuant to this Section 10.03 shall be held
uninvested and without any liability for interest.
Section 10.04. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers' Certificate, stating whether
or not to the knowledge of the signers thereof the Company is in Default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in Default, specifying all such
Defaults and the nature and status thereof of which they may have knowledge.
The Company shall deliver to the Trustee, as soon as possible and in
any event within 30 days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or event and the action which the
Company is taking or proposes to take in respect thereof.
Section 10.05. Existence. Subject to Article VIII, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.06. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 10.07. Reports and Delivery of Information. (a) The Company
shall file with the Trustee such annual and quarterly reports, information,
documents other reports (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, within 15 days after the applicable required filing date as set
forth in the Exchange Act, whether or not Company makes the filing with the
Commission. The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, if required by the Trust Indenture Act at the times and in
the manner required by the Trust Indenture Act. The Company also shall comply
with Trust Indenture Act Section 314(a), whether or not the Securities are
governed by the Trust Indenture Act. At any time when the Company is not subject
to Section
45
13 of 15(d) of the Exchange Act, the Company shall furnish to the Trustee (i)
quarterly financial statements within 45 days after the end of each fiscal
quarter that are substantially equivalent to those the Company would be required
to file with the Commission in a Quarterly Report on Form 10-Q, (ii) annual
financial statements within 90 days after the end of each fiscal year that are
substantially equivalent to those the Company would be required to file with the
Commission in an Annual Report on Form 10-K, including a report thereon by the
Company's certified independent accountants, and (iii) accompanying each of the
financial statements required by (i) and (ii) above, information substantially
equivalent to that required by Regulation S-K Item 303, "Management's Discussion
and Analysis of Financial Condition and Results of Operations;" provided, that
the Company shall be deemed to have satisfied its obligations under this
paragraph if it files such information with the Commission (if the Commission
will accept such filing) and such filing is available on the Commission's
Electronic Data Gathering, Analysis and Retrieval system or otherwise makes such
financial statements and other information available on or through its web site.
(b) 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, 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.
(c) It is expressly understood that materials transmitted
electronically by the Company to the Commission shall be deemed filed with the
Trustee for purposes of this Section 10.07. The Trustee shall not be under a
duty to review or evaluate any report or information delivered to the Trustee
pursuant to the provisions of this Section 10.07 for the purposes of making such
reports available to it and to the Holders of Securities who may request such
information. 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 Officers' Certificates).
Section 10.08. Resale of Certain Securities. During the period
beginning on the Issue Date and ending on the date that is two years from the
Issue Date, the Company shall not, and shall not permit any of its "affiliates"
(as defined under Rule 144 under the Securities Act or any successor provision
thereto) to, resell any Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them. The Trustee shall have
no responsibility in respect of the Company's performance of its agreement in
the preceding sentence.
Section 10.09. Book-Entry System. If the Securities cease to trade in
the Depositary's book-entry settlement system, the Company covenants and agrees
that it shall use
46
reasonable efforts to make such other book entry arrangements that it determines
are reasonable for the Securities.
Section 10.10. Additional Interest Under the Registration Rights
Agreement. If at any time Additional Interest becomes payable by the Company
pursuant to the Registration Rights Agreement, the Company shall promptly
deliver to the Trustee a certificate to that effect and stating (i) the amount
of such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable pursuant to the terms of the Registration Rights
Agreement. Unless and until a Responsible Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no Additional Interest
is payable. If the Company has paid Additional Interest directly to the Persons
entitled to such Additional Interest, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.
Section 10.11. Information for IRS Filings. The Company shall provide
to the Trustee on a timely basis such information as the Trustee requires to
enable the Trustee to prepare and file any form required to be submitted by the
Trustee with the Internal Revenue Service and the Holders.
Section 10.12. Limit on Incurring Additional Indebtedness and Liens.
Prior to such time as the Closing Price of the Common Stock has exceeded 200% of
the Conversion Price for at least 30 Trading Days during any period of 40
consecutive Trading Days following the effectiveness of the Shelf Registration
Statement, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly:
(a) incur, create, issue, assume, guarantee or otherwise become liable
for any outstanding Indebtedness that ranks senior to, or pari passu with, the
Securities in an aggregate principal amount in excess of the greater of (i)
Indebtedness incurred under the Credit Facility, or (ii) three times LTM EBITDA,
measured at any time the Company incurs, creates, issues, assumes, guarantees or
otherwise becomes directly or indirectly liable for such Indebtedness, including
any amounts owing under the Credit Facility; provided that, to the extent any
Indebtedness is permitted pursuant to the immediately preceding clause of this
Section 10.12, such Indebtedness shall not under any circumstances be
convertible into, or exchangeable or exercisable for, Common Stock, or
(b) allow or suffer to exist any mortgage, lien, pledge, charge,
security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by the Company or any of its
Subsidiaries, other than to secure Indebtedness permitted by clause (a) above.
At any such time that the Company seeks to incur, create, issue,
assume, guarantee or otherwise become directly or indirectly liable for
Indebtedness other than Indebtedness incurred under the Credit Facility, the
Company shall deliver, prior to the incurrence of such Indebtedness, an
Officers' Certificate to the Trustee (w) certifying the amount of LTM EBITDA,
(x) setting forth the calculation of such figure, (y) specifying the publicly
available financial information upon which such calculation was based and (z)
directing the Trustee to deliver a copy of such Officers' Certificate to the
Holders in accordance with the last sentence of this Section 10.12; provided
that, to the extent that any Officers' Certificate delivered
47
hereunder contains any material, nonpublic information, the Company shall, prior
to or contemporaneously with the delivery of such certificate to the Holders,
publicly disclose such information. The Trustee shall deliver a copy of any
Officers' Certificate delivered to it pursuant to this Section 10.12 to the
Holders within five Business Days of its receipt thereof.
Section 10.13. Requirement to Seek Stockholder Approval. At the next
special or annual meeting of stockholders of the Company, the Company shall take
all action necessary to seek to obtain the approval of its stockholders
providing for the Company's issuance of all of the shares of Common Stock issued
and issuable pursuant hereto upon conversion of the Securities or payment of the
Make-Whole Premium, as applicable, without reference to the limit thereon set
forth in Section 13.06(i), pursuant to the rules or regulations of The NASDAQ
Global Select Market, including, without limitation, NASDAQ Marketplace Rule
4350(i) (the "STOCKHOLDER APPROVAL"). In connection with such action, the
Company shall provide each stockholder with a proxy statement and shall use its
reasonable best efforts to solicit and obtain the Stockholder Approval and to
cause its Board of Directors to recommend, to the extent possible consistent
with its fiduciary duties under applicable law, to the stockholders that they
approve such proposals. If, despite the Company's reasonable best efforts, such
Stockholder Approval is not obtained at the first meeting at which it is
presented for a vote, the Company shall seek to obtain such Stockholder Approval
at each subsequent general meeting of stockholders until such Stockholder
Approval is obtained.
ARTICLE XI
REDEMPTION PRIOR TO MATURITY; REPURCHASE UPON A FUNDAMENTAL CHANGE
Section 11.01. Company's Right to Redeem; Notices to Trustee. Prior to
December 15, 2009, the Securities are not redeemable. At any time commencing on
December 15, 2009 and ending December 15, 2011, subject to the terms and
conditions of this Article XI, if the Closing Price of the Common Stock on no
fewer than 20 Trading Days of the 30 consecutive Trading Days immediately
preceding the applicable Redemption Notice Date exceeds 150% of the Conversion
Price, the Company may, at its option, redeem the Securities for cash in whole
or in part at the Redemption Price. From and after December 15, 2011, subject to
the terms and conditions of this Article XI, the Company may, at its option,
redeem the Securities for cash in whole or in part at the Redemption Price.
Section 11.02. Selection of Securities to be Redeemed. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot (so long as such method is not prohibited by
the rules of any stock exchange on which the Securities are then listed). The
Trustee shall make the selection within seven days from its receipt of the
notice from the Company delivered pursuant to Section 11.01 from Outstanding
Securities not previously called for redemption and shall notify the Company of
its selection.
Securities and portions of them the Trustee selects shall be in
Principal Amounts of $1,000 or integral multiples of $1,000. Provisions of this
Indenture that apply to Securities called for redemption in whole also apply to
Securities called for redemption in part.
48
If any Security selected for partial redemption is converted in part
before termination of the conversion right in respect of the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
Section 11.03. Notice of Redemption. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
required redemption ("COMPANY'S REDEMPTION ELECTION NOTICE" and the date such
notice is given, the "REDEMPTION ELECTION NOTICE DATE") 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:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Conversion Price;
(d) the name and address of the Paying Agent and Conversion
Agent;
(e) that Securities called for redemption may be converted at any
time before the close of business on the Business Day immediately preceding the
Redemption Date;
(f) that Holders who want to convert Securities must satisfy the
requirements set forth therein and in this Indenture;
(g) that Securities called for redemption must be surrendered to
the Paying Agent for cancellation to collect the Redemption Price;
(h) if fewer than all the outstanding Securities are to be
redeemed, the certificate number (if such Securities are held other than in
global form) and Principal Amounts of the particular Securities to be redeemed;
(i) that, unless the Company defaults in making payment of such
Redemption Price, Securities covered by any redemption will cease to be
outstanding and interest will cease to accrue on and after the Redemption Date
with respect to the Securities to be redeemed; and
(j) the CUSIP number of the Securities.
At the Company's written request delivered at least 10 days prior to
the date such notice is to be given (unless a shorter time period shall be
acceptable to the Trustee), the Trustee shall give the Company's Redemption
Election Notice in the Company's name and at the Company's expense.
49
Section 11.04. Effect of Notice of Redemption. Once the Company's
Redemption Election Notice is given, Securities called for redemption become due
and payable on the applicable Redemption Date and at the Redemption Price stated
in the notice except for Securities which are converted in accordance with the
terms of this Indenture. Upon surrender to the Paying Agent, such Securities
shall be paid at the Redemption Price stated in the notice.
Section 11.05. Holder's Right to Require Redemption. Each Holder
making an election in accordance with this Article XI shall, by notice given in
accordance with Section 11.06, have the right to require the Company to redeem
any of its outstanding Securities in cash on each of December 15, 2011, December
15, 2016 and December 15, 2021 (each, a "HOLDER REDEMPTION DATE") at the
Redemption Price. The Company shall redeem in cash at the Redemption Price on
the applicable Holder Redemption Date any Securities which Holders elect for
redemption in accordance with this Section 11.05.
Section 11.06. Notice of Right to Require Redemption. At least 30 days
but not more than 60 days before each applicable Holder Redemption Date, the
Company shall mail a notice (the "NOTICE OF REDEMPTION RIGHT") of a Holder's
right to require redemption by first-class mail, postage prepaid, to each Holder
of Securities.
The Notice of Redemption Right shall state:
(a) the applicable Holder Redemption Date;
(b) the Redemption Price;
(c) the Conversion Price;
(d) the name and address of the Paying Agent and Conversion
Agent;
(e) that Securities presented for redemption may be converted at
any time before the close of business on the Business Day immediately preceding
the applicable Holder Redemption Date;
(f) that Holders who want to convert Securities must satisfy the
requirements set forth therein and in this Indenture;
(g) that Securities presented for redemption must be surrendered
to the Paying Agent for cancellation to collect the Redemption Price;
(h) that, unless the Company defaults in making payment of such
Redemption Price, Securities covered by any Notice of Redemption will cease to
be outstanding and interest will cease to accrue on and after the applicable
Holder Redemption Date with respect to the Securities to be redeemed;
(i) that if the Holder does not comply with the procedures
specified and present Securities to be redeemed to the Paying Agent not later
than the applicable Holder Redemption Date, the right to require redemption on
such Holder Redemption Date will terminate; and
50
(j) the CUSIP number of the Securities.
At the Company's written request delivered at least 10 days prior to
the date such notice is to be given (unless a shorter time period shall be
acceptable to the Trustee), the Trustee shall give the Notice of Redemption
Right in the Company's name and at the Company's expense.
Section 11.07. Redemption by Holder. At any time after a Holder's
timely receipt of a Notice of Redemption Right, but in no event later than five
days prior to the applicable Holder Redemption Date, such Holder may require the
Company to redeem, in whole or in part, the Securities held by such Holder by
delivering a notice (the "NOTICE OF REDEMPTION") to the Paying Agent. The Notice
of Redemption shall state:
(a) if certificated, the certificate numbers of the Securities
which such Holder will deliver to be redeemed, or, if not certificated, the
Notice of Redemption must comply with appropriate procedures of the Depositary;
(b) the portion of the Principal Amount of the Securities which
the Holder will deliver to be redeemed, which portion must be in a Principal
Amount of $1,000 or integral multiples thereof; and
(c) that such Securities shall be redeemed as of the applicable
Holder Redemption Date pursuant to the terms and conditions specified in the
Securities and in this Indenture.
Section 11.08. Deposit of Redemption Price. Prior to 10:00 a.m., New
York City time, on any Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of all Securities to be redeemed on that date other
than Securities or portions of Securities presented 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 XIII. If such money is then held by the Company
in trust and is not required for such purpose it shall be discharged from such
trust.
Section 11.09. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and, upon receipt
of a Company Order, the Trustee shall authenticate and deliver to the Holder a
new Security in an authorized denomination equal in principal amount to the
unredeemed portion of the Security surrendered. The Company shall not be
required to (i) issue, register the transfer of, or exchange any Securities
during a period of 10 days before a Redemption Date or (ii) register the
transfer of, or exchange any, Securities so presented for redemption, in whole
or in part, except the unredeemed portion of any Security being redeemed in
part.
51
Section 11.10. Repurchase of Securities at Option of the Holder Upon
Fundamental Change.
(a) General. If prior to the Stated Maturity there shall have
occurred a Fundamental Change, each Holder shall have the option to require all
or a portion of its Securities to be repurchased (the "FUNDAMENTAL CHANGE
REPURCHASE") in cash by the Company at the Fundamental Change Repurchase Price
on the Fundamental Change Settlement Date in accordance with the following
procedures. The "FUNDAMENTAL CHANGE REPURCHASE PRICE" means the Principal Amount
of the Securities to be repurchased, together with accrued and unpaid interest
and Additional Interest, if any, to, but excluding, the Fundamental Change
Settlement Date.
(b) Company Notice of Fundamental Change. Within 15 days after
the Company knows or reasonably should know of the occurrence of a Fundamental
Change, the Company shall deliver a written notice of Fundamental Change (the
"FUNDAMENTAL CHANGE COMPANY NOTICE") by first-class mail or by overnight courier
to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include a form of Fundamental Change
Repurchase Notice to be completed by the Securityholder and shall state:
(i) the events causing a Fundamental Change and the date of
such Fundamental Change;
(ii) the last date of the Fundamental Change
Conversion/Repurchase Period by which a Holder must deliver a Fundamental Change
Repurchase Notice to elect the repurchase option pursuant to this Section 11.10
or deliver a Notice of Conversion requesting conversion upon a Fundamental
Change in accordance with Section 13.02;
(iii) the Fundamental Change Settlement Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Conversion Price applicable on the date of the
Fundamental Change Company Notice;
(vi) that Securities as to which a Fundamental Change
Repurchase Notice has been given may be converted pursuant to Article XIII
hereof only if the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(vii) that Securities must be surrendered to the Paying
Agent for cancellation to collect payment;
(viii) that the Fundamental Change Repurchase Price for any
Security as to which a Fundamental Change Repurchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the Fundamental
Change Settlement Date and the time of surrender of such Security as described
in clause (vii) above;
52
(ix) the procedures the Holder must follow to exercise
rights under this Section 11.10;
(x) the conversion rights of the Securities;
(xi) the procedures for withdrawing a Fundamental Change
Repurchase Notice;
(xii) that, unless the Company defaults in making payment of
such Fundamental Change Repurchase Price, Securities covered by any Fundamental
Change Repurchase Notice will cease to be outstanding and interest will cease to
accrue on and after the Fundamental Change Settlement Date;
(xiii) the CUSIP number of the Securities; and
(xiv) whether a Make-Whole Premium is required to be paid by
the Company upon any conversion in connection such a Fundamental Change.
The Company shall, at least three Business Days prior to delivering
the Fundamental Change Company Notice, deliver an Officers' Certificate to the
Trustee specifying:
(A) the information required by the Fundamental Change
Company Notice pursuant to Section 11.10(b), and
(B) whether the Company desires the Trustee to give the
Fundamental Change Company Notice required by Section 11.10(b).
If the Company requests that the Trustee shall give (at the Company's
expense) such Fundamental Change Company Notice in the Company's name, the
Company shall, in all cases, prepare the text of such Fundamental Change Company
Notice. In connection with delivery of the Fundamental Change Company Notice to
the Holders, the Company shall publish a notice containing substantially the
same information that is required in the Fundamental Change Company Notice in a
newspaper published in the English language, customarily published each Business
Day and of general circulation in The City of New York, or publish such
information on the Company's website or through such other public medium as the
Company may use at such time.
(c) Fundamental Change Repurchase Notice. In order to exercise
its rights under Section 11.10 hereof, a Holder must deliver to the Paying
Agent:
(i) a written notice of repurchase (a "FUNDAMENTAL CHANGE
REPURCHASE NOTICE"), substantially in the form of Exhibit D hereto, at any time
during the period beginning upon receipt of the Fundamental Change Company
Notice and ending on the twenty (20) Trading Days after the Effective Date (the
"FUNDAMENTAL CHANGE CONVERSION/REPURCHASE PERIOD"):
53
(A) if certificated, the certificate numbers of the
Securities which such Holder will deliver to be repurchased, or, if not
certificated, the Fundamental Change Repurchase Notice must comply with
appropriate procedures of the Depositary;
(B) the portion of the Principal Amount of the
Securities which the Holder will deliver to be repurchased, which portion must
be in a Principal Amount of $1,000 or integral multiples thereof; and
(C) that such Securities shall be repurchased as of the
Fundamental Change Settlement Date pursuant to the terms and conditions
specified in the Securities and in this Indenture; and
(ii) the Security (if such Security is held other than in
global form) for cancellation prior to, on or after the Fundamental Change
Settlement Date (together with all necessary endorsements) at the offices of the
Paying Agent, such delivery being a condition to receipt by the Holder of the
Fundamental Change Repurchase Price therefor; provided that such Fundamental
Change Repurchase Price shall be so paid pursuant to this Section 11.10 only if
the Security so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Fundamental Change Repurchase Notice.
Provisions of this Indenture that apply to the repurchase of all of a
Security also apply to the repurchase of any portion of such Security.
Any repurchase by the Company contemplated pursuant to the provisions
of this Section 11.10 shall be consummated by the delivery to the Paying Agent
of the consideration to be received by the Holder promptly following the later
of the Fundamental Change Settlement Date and the time of delivery of the
Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Fundamental Change Repurchase Notice contemplated by
this Section 11.10(c) shall have the right to withdraw such Fundamental Change
Repurchase Notice at any time prior to the close of business on the Business Day
prior to the Fundamental Change Settlement Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 11.11.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof.
(d) Procedure Upon Repurchase. The Company shall deposit cash at
the time and in the manner as provided in Section 11.14, sufficient to pay the
aggregate Fundamental Change Repurchase Price of all Securities to be purchased
pursuant to this Section 11.10.
Section 11.11. Effect of Fundamental Change Repurchase Notice. Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section 11.10(c), the Holder of the Security in respect of which
such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Fundamental Change
Repurchase Price in respect of such Security. Such Fundamental Change
54
Repurchase Price shall be paid to such Holder, subject to receipt of funds by
the Paying Agent, promptly following the later of (x) the Fundamental Change
Settlement Date in respect of such Security (provided the conditions in Section
11.10(c) have been satisfied) and (y) the time of delivery of such Security to
the Paying Agent by the Holder thereof in the manner required by Section
11.10(c). Securities in respect of which a Fundamental Change Repurchase Notice
has been given by the Holder thereof may not be converted pursuant to Article
XIII on or after the date of the delivery of such Fundamental Change Repurchase
Notice unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A Fundamental Change Repurchase Notice may be withdrawn only by means
of a written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the procedures set forth in the Fundamental Change Company
Notice at any time prior to the close of business on the Business Day prior to
the Fundamental Change Settlement Date specifying:
(a) the Principal Amount of the Securities in respect of which
such notice of withdrawal is being submitted;
(b) if certificated, the certificate numbers of the Securities in
respect of which such notice of withdrawal is being submitted, or, if not
certificated, such notice of withdrawal must comply with appropriate procedures
of the Depositary; and
(c) the Principal Amount, if any, of such Securities which
remains subject to the original Fundamental Change Repurchase Notice and which
has been or will be delivered for repurchase by the Company.
There shall be no repurchase of any Securities pursuant to Section
11.10 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 Fundamental Change
Repurchase Notice) and is continuing an Event of Default (other than a default
in the payment of the Fundamental Change Repurchase Price in respect of such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) in respect of which a Fundamental Change Repurchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Fundamental Change Repurchase Price in respect of such
Securities) in which case, upon such return, the Fundamental Change Repurchase
Notice in respect thereof shall be deemed to have been withdrawn.
Section 11.12. Securities Repurchased in Whole or in Part. Any
Security which is to be repurchased, whether in whole or in part, shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of the
Security so surrendered which is not repurchased.
55
Section 11.13. Covenant to Comply With Securities Laws Upon Repurchase
of Securities. In connection with any offer to repurchase Securities under
Section 11.10 (provided that such offer or repurchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or repurchase), the Company shall (a) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (b) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, and (c) otherwise comply with
all Federal and state securities laws so as to permit the rights and obligations
under Section 11.10 to be exercised in the time and in the manner specified in
Section 11.10, as applicable.
Section 11.14. Deposit of Fundamental Change Repurchase Price. Prior
to 10:00 a.m., New York City time, on the Business Day preceding the Fundamental
Change Settlement Date, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided herein) an amount of money (in immediately available funds if deposited
on such Business Day), sufficient to pay the Fundamental Change Repurchase Price
of all the Securities or portions thereof which are to be repurchased as of the
Fundamental Change Settlement Date. The Company shall promptly notify the
Trustee in writing of the amount of any deposits of cash made pursuant to this
Section 11.14.
Section 11.15. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest, if any, thereon, held by them for the payment of the Fundamental
Change Repurchase Price; provided that to the extent that the aggregate amount
of cash deposited by the Company pursuant to Section 11.14 exceeds the aggregate
Fundamental Change Repurchase Price of the Securities or portions thereof which
the Company is obligated to repurchase as of the Fundamental Change Settlement
Date, then as soon as practicable following the Fundamental Change Settlement
Date, the Trustee or the Paying Agent, as the case may be, shall return any such
excess to the Company.
ARTICLE XII
INTEREST PAYMENTS ON THE SECURITIES
Section 12.01. Interest Rate. (a) Interest on the Securities shall be
payable semi-annually in arrears on each Interest Payment Date to Holders of
record on the Record Date immediately preceding such Interest Payment Date.
Interest on the Securities shall accrue at a rate of 4% per annum. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid, or if no interest has been paid, from December 15, 2006,
until the Principal Amount is paid or duly made available for payment.
(b) If prior to any Interest Payment Date, Additional Interest
has accrued under the Registration Rights Agreement and not theretofore been
paid in full, any such Additional Interest shall be due and payable on such
Interest Payment Date, and shall be included in interest payable on such
Interest Payment Date and shall be paid in the manner provided for herein for
the payment of interest.
56
(c) Interest on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security is registered at the close of business on the
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be made by
check mailed to the address of the Holder specified in the register of
Securities; provided, however, that, in respect of any Holder of Securities with
an aggregate principal amount in excess of $5,000,000, at the request of such
Holder in writing to the Company, interest on such Holder's Securities shall be
paid by wire transfer in immediately available funds in accordance with the
written wire transfer instruction supplied by such Holder from time to time to
the Trustee and Paying Agent (if different from the Trustee) at least ten days
prior to the applicable Interest Payment Date. In the case of a permanent Global
Security, interest payable on any Interest Payment Date will be paid to the
Depositary, in respect of that portion of such permanent Global Security held
for its account by Cede & Co. for the purpose of permitting such party to credit
the interest received by it in respect of such permanent Global Security to the
accounts of the beneficial owners thereof.
ARTICLE XIII
CONVERSION
Section 13.01. Conversion Privilege. (a) Subject to the further
provisions of this Article XIII, at any time or times after the Issue Date, a
Holder of a Security may convert the Principal Amount of such Security (or any
portion thereof equal to $1,000 or any integral multiple of $1,000 in excess
thereof) into shares of Common Stock at any time prior to the close of business
on the Business Day prior to the Stated Maturity.
(b) Conversion Period. Notwithstanding the foregoing, if such
Security is presented for repurchase or redemption pursuant to Article XI, such
conversion right shall terminate at the close of business on the Business Date
immediately preceding a Redemption Date or the last day of the Fundamental
Change Conversion/Repurchase Period for such Security (unless the Company shall
default on payment when due, in which case the conversion right shall extend to
the close of business on the date such default is cured and such Security is
redeemed or repurchased).
(c) Conversion Rate. The number of shares of Common Stock
issuable upon conversion of any Conversion Amount pursuant to Section 13.01
shall be determined by dividing (x) such Conversion Amount by (y) the Conversion
Price (the "CONVERSION RATE").
(i) "CONVERSION AMOUNT" means the portion of the Principal
Amount to be converted, redeemed or otherwise in respect of which this
determination is being made.
(ii) "CONVERSION PRICE" means, as of any Conversion Date (as
defined below) or other date of determination, and subject to adjustment as
provided herein, $12.336, subject to adjustment as provided herein.
57
(d) Securities Converted in Whole or in Part. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
(e) Rights of Holders. Unless otherwise provided herein, a Holder
of Securities is not entitled to any rights of a holder of Common Stock until
such Holder has converted its Securities to Common Stock, and only to the extent
such Securities are deemed to have been converted into Common Stock pursuant to
this Article XIII.
Section 13.02. Conversion Procedure. (a) To convert a Security (or any
portion thereof) into shares of Common Stock on any date (the "CONVERSION
DATE"), a Holder must (i) complete and manually sign the conversion notice on
the back of the Security (or a facsimile of the conversion notice) specifying
the Principal Amount of such Security such Holder seeks to convert and deliver
such notice (the "NOTICE OF CONVERSION") to a Conversion Agent, (ii) surrender
the Security to a Conversion Agent, (iii) furnish appropriate endorsements and
transfer documents if required by a Registrar or a Conversion Agent and (iv) pay
any transfer or similar tax, if required. Anything herein to the contrary
notwithstanding, in the case of Global Securities, a Notice of Conversion shall
be delivered and such Securities shall be surrendered for conversion in
accordance with the rules and procedures of the Depositary as in effect from
time to time.
(b) The Company will, as soon as practicable after the Conversion
Date, but in no event later than two Trading Days following the delivery of a
Notice of Conversion (the "SHARE DELIVERY DATE") issue, or cause to be issued,
and deliver to the Conversion Agent or to such Holder, or such Holder's nominee
or nominees, certificates for the number of full shares of Common Stock, if any,
to which such Holder shall be entitled. The Person or Persons entitled to
receive such Common Stock upon such conversion shall be treated for all purposes
as the record holder or holders of such Common Stock, as of the close of
business on the applicable Conversion Date; provided, however, that no surrender
of a Security on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided further that such conversion shall be at the Conversion Price
in effect on the Conversion Date as if the stock transfer books of the Company
had not been closed. Upon conversion in full of a Security, such Person shall no
longer be a Holder of such Security. Except as otherwise provided in Section
13.06, no payment or adjustment will be made for dividends or distributions on
shares of Common Stock issued upon conversion of a Security.
All Securities or portions thereof surrendered for conversion
during the period from the close of business on the Record Date to the opening
of business on the day immediately following the Interest Payment Date shall be
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest otherwise payable on such Interest Payment Date on the Principal
Amount being converted; provided, however, that no such payment need be made if
(i) the Company has specified a Company Redemption Date that is
58
after a Record Date and on or prior to the corresponding Interest Payment Date,
or (ii) there shall exist at the time of conversion a default in the payment of
interest on the Securities.
(c) Company's Failure to Timely Convert. If the Company shall
fail to issue, or cause to be issued, and deliver to the Conversion Agent or to
a Holder, or such Holder's nominee or nominees, certificates for the number of
full shares of Common Stock, if any, to which such Holder shall be entitled upon
conversion of any Securities on or prior to the date which is three Trading Days
after the Conversion Date (a "CONVERSION FAILURE"), and if on or after such
Trading Day such Holder purchases (in an open market transaction or otherwise)
Common Stock to deliver in satisfaction of a sale by such Holder of Common Stock
issuable upon such conversion that such Holder anticipated receiving from the
Company (a "BUY-IN"), then the Company shall, within three Business Days after
such Holder's request and in such Holder's discretion, either (i) pay cash to
such Holder in an amount equal to such Holder's total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased (the
"BUY-IN PRICE"), at which point the Company's obligation to deliver such
certificate (and to issue such Common Stock) shall terminate, or (ii) promptly
honor its obligation to deliver to such Holder a certificate or certificates
representing such Common Stock and pay cash to such Holder in an amount equal to
the excess (if any) of the Buy-In Price over the product of (A) such number of
shares of Common Stock, times (B) the Closing Price on the Conversion Date.
(d) If a Holder converts more than one Security at the same time,
the number of shares of Common Stock issuable upon the conversion shall be based
on the aggregate Principal Amount of Securities converted.
(e) The conversion by the Holder following its receipt of the
Fundamental Change Company Notice during the Fundamental Change
Conversion/Repurchase Period shall be a "FUNDAMENTAL CHANGE CONVERSION". Except
as otherwise provided in Section 13.07, in connection with a Fundamental Change
Conversion, the Holder shall be entitled to receive a Make-Whole Premium in
accordance with Article XIV.
(f) Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, as soon as practicable, a new Security equal in Principal Amount to the
unconverted portion of the Security surrendered.
(g) If the last day on which a Security may be converted is not a
Business Day in a place where a Conversion Agent is located, the Securities may
be surrendered to that Conversion Agent on the next succeeding Business Day.
(h) Holders that have already delivered a Fundamental Change
Repurchase Notice in respect of a Security may not surrender such Security for
conversion until the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the procedures set forth in Section 11.11.
(i) The Company shall not effect any conversion of a Security,
and no Holder shall have the right to convert any portion of such Security, to
the extent that after giving
59
effect to such conversion (including any Make-Whole Premium), the Holder
(together with the Holder's affiliates) would beneficially own in excess of
4.99% of the number of shares of Common Stock outstanding immediately after
giving effect to such conversion (the "CONVERSION LIMITATION"). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned
by the Holder and its affiliates shall include the number of shares of Common
Stock issuable upon conversion of a Security in respect of which the
determination of such sentence is being made, but shall exclude the number of
shares of Common Stock which would be issuable upon (A) conversion of the
remaining, nonconverted portion of any Security beneficially owned by the Holder
or any of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a
limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by the Holder or any of its affiliates. Except as set
forth in the preceding sentence, for purposes of this Section, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act. For purposes of this Section 13.02(i), in determining the number of
outstanding shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the Company's most recent
Form 10-K, 10-Q or Form 8-K, as the case may be, (y) a more recent public
announcement by the Company or (z) any other notice by the Company setting forth
the number of shares of Common Stock outstanding. For any reason at any time,
upon the written or oral request of the Holder, the Company shall within one
Business Day confirm orally and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the conversion or
exercise of securities of the Company, including any Security, by the Holder or
its Affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. Notwithstanding the foregoing, the Conversion
Limitation shall not be applicable (i) on any of the ten Trading Days up to and
including the Stated Maturity, or (ii) on any of the ten Trading Days up to and
including the Effective Date or (iii) during the Fundamental Change
Conversion/Repurchase Period.
Section 13.03. No Fractional Shares. The Company shall not issue any
fraction of a share of Common Stock upon any conversion. If the issuance would
result in the issuance of a fraction of a share of Common Stock, the Company
shall round such fraction of a share of Common Stock to the nearest whole share.
The Company shall pay any and all taxes that may be payable in respect of the
issuance and delivery of Common Stock upon conversion of any Conversion Amount.
Section 13.04. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issuance of shares of Common Stock upon such conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificate representing the Common Stock being issued
in a name other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section 13.05. Company to Provide Stock. (a) The Company shall, prior
to issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of
60
its authorized but unissued Common Stock, a sufficient number of shares of
Common Stock to permit the conversion of all outstanding Securities into shares
of Common Stock (including after taking into account any adjustments to the
Conversion Price pursuant to Section 13.06).
(b) All shares of Common Stock delivered upon conversion of the
Securities, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim other than those created by a Holder.
(c) The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on any Eligible Market. Any Common Stock
issued upon conversion of a Security hereunder which at the time of conversion
was a Transfer Restricted Security will remain a restricted security.
Section 13.06. Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its Common
Stock in shares of Common Stock, (ii) make a distribution on its Common Stock in
shares of Common Stock, (iii) subdivide its outstanding Common Stock into a
greater number of shares, or (iv) combine its outstanding Common Stock into a
smaller number of shares, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights, options or warrants
(other than pursuant to a Rights Plan) to all or substantially all holders of
its Common Stock entitling them (for a period commencing no earlier than the
record date described below and expiring not more than 60 days after such record
date) to subscribe for or purchase shares of Common Stock (or securities
convertible into or exercisable or exchangeable for Common Stock) at a price per
share (or having a conversion, exercise or exchange price per share) less than
the Closing Price per share of Common Stock on the Business Day immediately
prior to the date of announcement of such issuance (treating the conversion,
exercise or exchange price per share of the securities convertible into or
exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the
price for a unit of the security convertible into or exercisable or exchangeable
for Common Stock and (ii) any additional consideration initially payable upon
the conversion of such security into or exercise or exchange of such security
for Common Stock divided by (y) the number of shares of Common Stock initially
underlying such security), the Conversion Price in effect shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price by a fraction:
61
(1) the numerator of which shall be the number of shares of
Common Stock outstanding on the close of business on the date of announcement,
plus the number of shares which the aggregate offering price of the total number
of shares so offered for subscription or purchase (or the aggregate conversion,
exercise or exchange price of the securities so offered) would purchase at such
Current Market Price per share of Common Stock; and
(2) the denominator of which shall be the number of shares
of Common Stock outstanding at the close of business on the date of
announcement, plus the total number of additional shares of Common Stock so
offered for subscription or purchase (or into which the securities so offered
are convertible, exercisable or exchangeable).
Such adjustment shall be made successively whenever any such
rights, options or warrants are issued, and shall become effective on the day
following the date of announcement of such issuance.
(c) (i) In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares of Capital Stock of the
Company (other than Common Stock), evidences of indebtedness or other non-cash
assets (including securities of any person other than the Company but excluding
(1) dividends or distributions paid exclusively in cash, (2) dividends or
distributions referred to in subsection (a) of this Section 13.06 or (3)
distributions made in connection with the liquidation, dissolution or winding up
of the Company), or shall distribute to all or substantially all holders of its
Common Stock rights, options or warrants to subscribe for or purchase any of its
securities (excluding those rights, options and warrants referred to in
subsection (b) of this Section 13.06 and also excluding the distribution of
rights to all holders of Common Stock pursuant to a Rights Plan or the
detachment of such rights to the extent set forth in the second following
paragraph), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the current
Conversion Price by a fraction:
(1) the numerator of which shall be the Current Market Price
per share of Common Stock on such record date, less the fair market value on
such record date (as determined by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value and which shall be
evidenced by an Officer's Certificate delivered to Trustee) of the portion of
the distributed assets so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on
the record date); and
(2) the denominator of which shall be such Current Market
Price per share of Common Stock on such record date mentioned below.
Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(ii) In the event that the Company has in effect a preferred
shares rights plan ("RIGHTS PLAN"), upon conversion of the Securities into
Common Stock, to the
62
extent that the Rights Plan is still in effect upon such conversion, the Holders
will receive, in addition to the Common Stock, the rights described therein
(whether or not the rights have separated from the Common Stock at the time of
conversion), subject to the limitations set forth in the Rights Plan. If the
Rights Plan provides that upon separation of rights under such plan from the
Common Stock that the Holders would not be entitled to receive any such rights
in respect of the Common Stock issuable upon conversion of the Securities, the
Conversion Price will be adjusted as provided in this Section 13.06(c) (with
such separation deemed to be the distribution of such rights), subject to
readjustment in the event of the expiration, termination or redemption of the
rights. Any distribution of rights or warrants pursuant to a Rights Plan that
would allow a Holder to receive upon conversion, in addition to the Common
Stock, the rights described therein (whether or not the rights have separated
from the Common Stock at the time of conversion), shall not constitute a
distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options 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, options or warrants, until the occurrence
of a specified event or events ("TRIGGER EVENT"): (A) are deemed to be
transferred with such shares of Common Stock; (B) are not exercisable; and (C)
are also issued in respect of future issuances of Common Stock, shall be deemed
not to have been distributed for purposes of this Section 13.06 (and no
adjustment to the Conversion Price under this Section 13.06 will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights,
options and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Price shall be made under this
clause (c) of Section 13.06. If any such right or warrant, including any such
existing rights, options or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights,
options 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 in respect of new rights, options or warrants with such rights (and
a termination or expiration of the existing rights, options or warrants without
exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence)
in respect thereof that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Price under this Section 13.06
was made, in the case of any such rights, options or warrants which shall all
have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Price 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 in respect of such rights,
options or warrants (assuming such holder had retained such rights, options or
warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase.
(d) In case the Company shall, by dividend or otherwise, at any
time distribute (a "TRIGGERING DISTRIBUTION") to all or substantially all
holders of its Common Stock cash, the Conversion Price shall be decreased so
that the same shall equal the rate determined by multiplying such Conversion
Price in effect on the Business Day immediately prior to the record
63
date (the "DETERMINATION DATE") declared by the Company for such Triggering
Distribution by a fraction of which the numerator shall be the Current Market
Price per share of Common Stock on the Determination Date less the aggregate
amount of cash so distributable applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on
the date such distribution is made), and the denominator shall be the Current
Market Price per share of Common Stock on the Determination Date, such increase
to become effective immediately prior to the opening of business on the day
following the date on which the Triggering Distribution is paid. It is expressly
understood that a stock buyback, repurchase or similar transaction or program
shall in no event be considered a Triggering Distribution for purposes of this
clause (d) of Section 13.06.
(e) In case the Company or any of its Subsidiaries shall purchase
any shares of the Common Stock by means of a tender offer, then, effective
immediately prior to the opening of business on the day after the last date (the
"EXPIRATION DATE") tenders could have been made pursuant to such tender offer
(as it may be amended) (the last time at which such tenders could have been made
on the Expiration Date is hereinafter sometimes called the "EXPIRATION TIME"),
the Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the Expiration Date by a fraction of which:
(1) the numerator shall be the product of the number of
shares of Common Stock outstanding (including Purchased Shares but excluding any
shares held in the treasury of the Company) immediately prior to the Expiration
Time multiplied by the Current Market Price per share of Common Stock (as
determined in accordance with clause (f) of Section 13.06); and
(2) the denominator shall be the sum of (x) the aggregate
consideration (determined as set forth below) payable to stockholders of the
Company based on the acceptance (up to any maximum specified in the terms of the
tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "PURCHASED SHARES") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares and excluding any
shares held in the treasury of the Company) immediately prior to the Expiration
Time and the Current Market Price per share of Common Stock (as determined in
accordance with clause (f) of Section 13.06).
For purposes of this clause (e) of Section 13.06, the aggregate
consideration in any such tender offer shall equal the sum of the aggregate
amount of cash consideration and the aggregate fair market value (as determined
by the Board of Directors, whose determination shall be conclusive evidence
thereof and which shall be evidenced by an Officers' Certificate delivered to
the Trustee) of any other consideration payable in such tender offer. In the
event that the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law from
effecting any or all such purchases or any or all such purchases are rescinded,
the Conversion Price shall again be adjusted to be the Conversion Price which
would have been in effect based upon the number of shares actually purchased. If
the application of this clause (e) of Section 13.06 to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be made for
such
64
tender offer under this Section 13.06(e). For purposes of this clause (e) of
Section 13.06, the term "TENDER OFFER" shall mean and include both tender offers
and exchange offers, all references to "PURCHASES" of shares in tender offers
(and all similar references) shall mean and include both the purchase of shares
in tender offers and the acquisition of shares pursuant to exchange offers, and
all references to "TENDERED SHARES" (and all similar references) shall mean and
include shares tendered in both tender offers and exchange offers.
(f) "CURRENT MARKET PRICE PER SHARE OF COMMON STOCK" on any date
means (i) for the purpose of any computation under clauses (b), (c) or (d) of
this Section 13.06, the average of the daily Closing Prices for the ten
consecutive Trading Days commencing 11 Trading Days before the record date in
respect of distributions, issuances or other events requiring such computation
under Section 13.06 and (ii) for purposes of any computation under subsection
(e) of this Section 13.06, the arithmetic average of the daily Closing Prices
for the ten consecutive Trading Days commencing on the Trading Day next
succeeding the Expiration Date.
(g) In any case in which this Section 13.06 shall require that an
adjustment be made to the Conversion Price, in lieu of the foregoing adjustment,
the Company may, at its option, distribute, concurrently with the distribution
to the holders of the outstanding Common Stock, shares of Common Stock, rights,
options, warrants, any shares of Capital Stock of the Company (other than Common
Stock), evidences of indebtedness or other non-cash assets that such Holder of a
Security would have been entitled to receive, as applicable, had such Security
been converted immediately prior to the happening of the record date relating to
the event that would have caused such adjustment (without regard to the
Conversion Limitation).
(h) In any case in which this Section 13.06 shall require that an
adjustment be made following a record date, an announcement date or a
Determination Date or Expiration Date, as the case may be, established for
purposes of this Section 13.06, the Company may elect to defer (but only until
five Business Days following the filing by the Company with the Trustee of the
certificate described in Section 13.09) issuing to the Holder of any Security
converted after such record date or announcement date or Determination Date or
Expiration Date the shares of Common Stock and other capital stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other capital stock of the Company issuable upon such conversion only on the
basis of the Conversion Rate prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares.
(i) Notwithstanding the foregoing provisions of this Section
13.06, until the Company shall have received Stockholder Approval, the
Conversion Price shall not be adjusted below $10.091 (as adjusted for stock
splits, reverse stock splits, stock combinations, reclassifications,
reorganizations and similar events), nor shall the Make-Whole Premium be paid to
the extent (but only to the extent) the effective Conversion Price would be less
than $10. 091 (as adjusted for stock splits, reverse stock splits, stock
combinations, reclassifications, reorganizations and similar events).
Section 13.07. Conversion After a Public Acquirer Change of Control.
(a) In the event of a Public Acquirer Change of Control that occurs prior to
December 15, 2011, the
65
Company, in lieu of paying the Make-Whole Premium pursuant to Article XIV, may
elect to adjust the Conversion Price such that from and after the Effective Date
of such Public Acquirer Change of Control, Holders shall be entitled to convert
their Securities into a number of shares of Public Acquirer Common Stock in
accordance with Section 13.02. The adjusted Conversion Price shall be the
Conversion Price in effect immediately before the Public Acquirer Change of
Control multiplied by a fraction:
(i) the numerator of which will be the arithmetic average of
Weighted Average Price of the Common Stock for the five (5) consecutive Trading
Days prior to, but excluding, the Effective Date of such Public Acquirer Change
of Control, and
(ii) the denominator of which will be the arithmetic average
of the Weighted Average Price of the Public Acquirer Common Stock for the five
(5) consecutive Trading Days commencing on the Trading Day next succeeding the
Effective Date of such Public Acquirer Change of Control.
(b) In order to make the election pursuant to this Section 13.07,
the Company and the issuer of the Public Acquirer Common Stock shall execute (i)
with the Trustee a supplemental indenture providing that (x) the Public Acquirer
shall expressly assume all of the Company's obligations under the Securities and
the Indenture and (y) each Security shall be convertible into Public Acquirer
Common Stock and (ii) an amendment to the Registration Rights Agreement (to the
extent any Registrable Securities (as defined therein) remain outstanding) to
make the provisions thereof apply to the Public Acquirer Common Stock. Such
supplemental indenture shall provide for provisions and adjustments which shall
be as nearly equivalent as it may be practicable to the provisions and
adjustments provided for in this Article XIII as determined in good faith by the
Board of Directors of the Company or such Public Acquirer.
(c) At least twenty (20) Trading Days prior to the expected
Effective Date of a Fundamental Change that is also a Public Acquirer Change of
Control and not later than concurrently with the applicable Fundamental Change
Company Notice, the Company shall provide a notice (a "PUBLIC ACQUIRER CHANGE OF
CONTROL NOTICE") to all the Holders, the Trustee and the Paying Agent stating
whether the Company elects (i) to adjust the Conversion Price as set forth in
this Section 13.07 or (ii) does not elect to so adjust the Conversion Price, in
which case the Holders will have the right to convert Securities and, if
applicable, receive any Make-Whole Premium as set forth in Article XIV. In
addition, upon a Public Acquirer Change of Control, in lieu of converting
securities, the Holders can, subject to certain conditions, require the Company
to repurchase all or a portion of the Securities pursuant to Section 11.10.
Section 13.08. No Adjustment. (a) No adjustment need be made for
issuances of Excluded Securities.
(b) Without limiting the provisions of Section 13.06, no
adjustment shall be made thereunder, nor shall an adjustment be made to the
ability of the Holder to convert, for any distribution described therein if the
Holder will otherwise participate in the distribution without conversion of such
Holder's Securities as if such Holder held a number of shares of Common Stock
equal to the applicable Conversion Rate, multiplied by the Principal Amount
66
(expressed in thousands) of Securities held by such Holder, without having to
convert its Securities. Further, if the application of the foregoing formulas in
Section 13.06 would result in either an increase in the Conversion Price or a
decrease in the Conversion Price below the par value of the Common Stock, no
adjustment to the Conversion Price will be made (except on account of share
combinations). No adjustment in the Conversion Price shall be required unless
the adjustment would require a decrease of at least 1% in the Conversion Price
as last adjusted; provided, however, that any adjustments which by reason of
this Section 13.08 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, in any event, shall be
carried forward and taken into account regardless of whether the aggregate
adjustment is less than 1% upon the announcement by the Company of a Fundamental
Change, upon any Holder Redemption Date, upon any notice of redemption of the
Securities and at the Stated Maturity.
Section 13.09. Notice of Conversion Price Adjustment. (a) Whenever the
Conversion Price is adjusted, the Company shall promptly mail to Securityholders
a notice of the adjustment and file with the Trustee an Officers' Certificate
briefly stating the facts requiring the adjustment and the manner of computing
it. Unless and until the Trustee shall receive an Officers' Certificate setting
forth an adjustment of the Conversion Price, the Trustee may assume without
inquiry that the Conversion Price has not been adjusted and that the last
Conversion Price of which it has knowledge remains in effect.
(b) Whenever, rather than adjusting the Conversion Price, the
Company elects to distribute, concurrently with the distribution to the holders
of the outstanding Common Stock, shares of Common Stock, rights, options,
warrants, any shares of Capital Stock of the Company (other than Common Stock),
evidences of indebtedness or other non-cash assets that such Holder of a
Security would have been entitled to receive, as applicable, had such Security
been converted immediately prior to the happening of the record date relating to
the event that would have caused such adjustment (without regard to the
Conversion Limitation) as provided in Section 13.07(g), the Company shall,
contemporaneously with announcing such distribution, or giving notice thereof to
the holders of the Common Stock, provide notice to the Holders that they will
participate in such distribution on an as converted basis.
Section 13.10. Notice of Certain Transactions. In the event that:
(a) the Company takes any action which would require an
adjustment in the Conversion Price;
(b) the Company consolidates or merges with, or transfers all or
substantially all of its property and assets to, another corporation and
stockholders of the Company must approve the transaction; or
(c) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. The Company
shall mail the notice with respect to clause (a) at least five days before such
date and the notice with respect to clauses (b) and (c) at least twenty days
before such date. Failure to mail such notice or any defect therein
67
shall not affect the validity of any transaction referred to in clause (a), (b)
or (c) of this Section 13.10.
Section 13.11. Effect of Reclassification, Consolidation, Merger or
Sale on Conversion Privilege. If any of the following shall occur, namely: (a)
any reclassification or change of shares of Common Stock issuable upon
conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination, or any other change for which an adjustment is
provided in Sections 13.06 and 13.07); (b) any consolidation or merger or
combination to which the Company is a party other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of Common Stock; or (c) any sale or
conveyance as an entirety or substantially as an entirety of the property and
assets of the Company, directly or indirectly, to any Person, then the Company,
or such successor, purchasing or transferee corporation, as the case may be,
shall, as a condition precedent to such reclassification, change, combination,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, combination, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
deliverable upon conversion of such Security immediately prior to such
reclassification, change, combination, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article XIII. If,
in the case of any such consolidation, merger, combination, sale or conveyance,
the stock or other securities and property (including cash) receivable thereupon
by a holder of Common Stock include shares of stock or other securities and
property of a Person other than the successor, purchasing or transferee
corporation, as the case may be, in such consolidation, merger, combination,
sale or conveyance, then such supplemental indenture shall also be executed by
such other Person and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 13.11 shall
similarly apply to successive reclassifications, changes, combinations,
consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 13.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made in respect thereof and that all conditions
precedent have been complied with and (y) an Opinion of Counsel that all
conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
Section 13.12. Trustee's Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article XIII should be made, how it
should be made or what such
68
adjustment should be, but may accept as conclusive evidence of that fact or the
correctness of any such adjustment, and shall be protected in relying upon, an
Officers' Certificate including the Officers' Certificate in respect thereof
which the Company is obligated to file with the Trustee pursuant to Section
13.09. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities and the Trustee shall
not be responsible for the Company's failure to comply with any provisions of
this Article XIII. The Trustee shall not be responsible for monitoring the price
of the Common Stock, for determining the Conversion Price or for effecting any
calculations under this Article XIII.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 13.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate in respect thereof which the Company is obligated to file with the
Trustee pursuant to Section 13.11.
Section 13.13. Voluntary Decrease. The Company from time to time may
decrease the Conversion Price by any amount for any period of time if the period
is at least 20 days and if the decrease is irrevocable during the period if the
Board of Directors determines that such decrease would be in the best interest
of the Company or the Board of Directors deems it advisable to avoid or diminish
income tax to holders of shares of Common Stock in connection with any stock or
rights dividend or distribution or similar event, and the Company provides 10
days prior notice of any decrease in the Conversion Price.
Section 13.14. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to this Article XIII shall
be conclusive if made in good faith and in accordance with the provisions of
this Article XIII, absent manifest error, and set forth in a resolution of the
Board of Directors.
ARTICLE XIV
MAKE-WHOLE PREMIUM
Section 14.01. Make-Whole Premium. (a) If a Fundamental Change occurs
prior to December 15, 2011, the Company shall pay the Make-Whole Premium to
Holders of the Securities who effect a Fundamental Change Conversion at any time
during the Fundamental Change Conversion/Repurchase Period.
(b) Subject to the provisions of Section 13.07(i), the
Make-Whole Premium shall be equal to an additional number of shares of Common
Stock calculated in accordance with Section 14.01(c) hereof. The Make-Whole
Premium will be in addition to, and not in substitution for, any cash,
securities or other assets otherwise due to Holders of Securities upon
conversion as described in this Indenture.
(c) The "MAKE-WHOLE PREMIUM" shall be equal to the principal
amount of the Securities to be converted divided by $1,000 and multiplied by the
applicable number of shares of Common Stock determined by reference to the table
below (the "MAKE-WHOLE PREMIUM TABLE") and is based on the Effective Date and
the Stock Price.
69
ADDITIONAL SHARES REQUIRED TO BE ISSUED (PER $1,000 PRINCIPAL AMOUNT OF
SECURITIES)
STOCK PRICE
EFFECTIVE ----------------------------------------------------------------------------------------------------------------------
DATE $9.00 $10.00 $11.00 $12.00 $13.00 $14.00 $15.00 $16.00 $17.00 $18.00 $19.00 $20.00 $25.00 $30.00
--------- ------- ------- ------- ------- ------- ------- ------- ------- ------ ------ ------ ------ ------ ------
12/15/06 30.0476 25.9766 21.5656 18.2151 15.5069 13.3358 11.5992 10.1553 8.9524 7.9586 7.0979 6.3905 4.0229 2.7577
12/15/07 30.0476 25.1923 20.6340 16.9251 14.2204 11.9834 10.1125 8.7450 7.5840 6.5601 5.7466 5.1133 3.0121 1.9834
12/15/08 30.0476 24.1087 19.1232 15.2898 12.3521 9.9941 8.2045 6.7308 5.5550 4.6443 3.9310 3.2931 1.6256 1.0066
12/15/09 30.0476 23.1686 17.8142 13.8198 10.5826 8.0601 6.0677 4.3545 2.9377 1.8271 1.2131 0.7442 -- --
12/15/10 30.0476 21.3395 15.5762 11.4371 8.2729 6.0645 4.3253 2.9765 1.9922 1.1998 0.7436 0.4559 -- --
12/15/11 30.0476 18.9364 9.8481 4.9672 2.5804 1.1086 0.0405 -- -- -- -- -- -- --
70
The exact Stock Price and Effective Date may not be set forth on the
Make-Whole Premium Table, in which case, if the Stock Price is between two Stock
Prices on the Make-Whole Premium Table or the Effective Date is between two
Effective Dates on the Make-Whole Premium Table, the Make-Whole Premium shall be
determined by straight-line interpolation between Make-Whole Premium amounts set
forth for the higher and lower Stock Prices and the two Effective Dates, as
applicable, based on a 365-day year (or a 366-day year if the Effective Date
occurs in a leap year). The Stock Prices set forth in the column headers are
subject to adjustment pursuant to Section 14.02.
(i) If the Stock Price is less than or equal to $9.00
(subject to adjustment pursuant to Section 14.02, the "STOCK PRICE THRESHOLD"),
the Make-Whole Premium shall be equal to zero shares of Common Stock.
(ii) If the Stock Price is equal to or greater than $30.00
(subject to adjustment pursuant to Section 14.02, the "STOCK PRICE CAP"), the
Make-Whole Premium shall be equal to zero shares of Common Stock.
(iii) "STOCK PRICE" means the price paid per share of Common
Stock in the transaction constituting the Fundamental Change, determined as
follows: (i) if holders of Common Stock receive only cash in the transaction
constituting the Fundamental Change, the Stock Price shall equal the cash amount
paid per share of Common Stock; and (ii) in all other cases, the Stock Price
shall equal the arithmetic average of the Closing Prices of a share of Common
Stock over the five Trading Day period ending on the Trading Day immediately
preceding the Effective Date; and "EFFECTIVE DATE" means the date that a
Fundamental Change becomes effective.
(d) The Company shall pay the Make-Whole Premium solely in shares
of Common Stock (other than cash paid in lieu of fractional shares) or in the
same form of consideration into which all or substantially all of the shares of
Common Stock have been converted or exchanged in connection with the Fundamental
Change. If holders of the Common Stock receive or have the right to receive more
than one form of consideration in connection with such Fundamental Change, then,
for purposes of the foregoing, the forms of consideration in which the
Make-Whole Premium shall be paid shall be in proportion to the different forms
of consideration paid to holders of Common Stock in connection with such
Fundamental Change.
(e) Excepts as otherwise provided herein or in the Securities,
the Company or its agents shall be responsible for making all calculations
required under the terms of this Article XIV. Any determination that the Company
or its Board of Directors must make pursuant to this Article XIV shall be set
forth in a Board Resolution, shall be made in good faith and, absent manifest
error, shall be final and binding on Holders of the Securities. The Company or
its agents shall be required to deliver to the Trustee a schedule of its
calculations and the Trustee shall be entitled to conclusively rely upon the
accuracy of such calculation without independent verification.
(f) Promptly after determination of the actual number of shares
of Common Stock to be issued in respect of the Make-Whole Premium, the Company
shall publish a notice containing this information in a newspaper published in
the English language,
71
customarily published each Business Day and of general circulation in the City
of New York or publish such information on the Company's website or through such
other public medium as the Company may use at that time.
Section 14.02. Adjustment to the Make-Whole Premium. Whenever the
Conversion Price shall be adjusted from time to time by the Company pursuant to
Section 13.06, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the Stock Prices set forth in the Make-Whole Premium Table
shall be adjusted. The adjusted Stock Price Threshold, Stock Price Cap and Stock
Prices set forth in the Make-Whole Premium Table shall equal the Stock Price
Threshold, the Stock Price Cap and such Stock Prices, as the case may be,
immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Price as so adjusted and the denominator of which is the
Conversion Price immediately prior to the adjustment giving rise to such
adjustment. Each of the share amounts set forth in the body of the Make-Whole
Premium Table shall also be adjusted in the same manner and at the same time.
72
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
XXXXX & WESSON HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
-------------------------------------
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
73
EXHIBIT A
FORM OF FACE OF SECURITY
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF XXXXX & WESSON
HOLDING CORPORATION THAT (A) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), THIS SECURITY AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY TO (I) XXXXX & WESSON HOLDING CORPORATION OR ANY SUBSIDIARY
THEREOF, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY
PURSUANT TO CLAUSE (A)(IV) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER THE TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-2
Xxxxx & Wesson Holding Corporation
4% Senior Convertible Notes Due 2026
No. [_____] CUSIP XX. [000000 XX 0][000000 XX 7] U.S. $[______]
Xxxxx & Wesson Holding Corporation, a corporation duly organized and
validly existing under the laws of the State of Nevada (herein called the
"Company"), which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
[Cede & Co.], or registered assigns, the principal sum of [__________] United
States Dollars ($ ) [INCLUDE IF SECURITY IS A GLOBAL SECURITY -- (which amount
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary, in accordance with the
rules and procedures of the Depositary)] on December 15, 2026 and to pay
interest on said principal sum semiannually on June 15 and December 15 of each
year commencing June 15, 2007 at the rate of 4% per annum (to Holders of record
on the immediately preceding June 1 and December 1 which interest has been paid,
or if no interest has been paid, from December 15, 2006 until the Principal
Amount is paid or duly made available for payment. Except as otherwise provided
in the Indenture, the interest payable on this Security pursuant to the
Indenture on any June 15 and December 15 will be paid to the Person in whose
name this Security (or one or more predecessor Securities) is registered at the
close of business on the Record Date, which shall be June1 and December 1
(whether or not a Business Day) next preceding such June 1 and December 1,
respectively. Subject to the procedures of DTC, payment of the principal of and
interest accrued on this Security shall be made by wire transfer or by check
mailed to the address of the Holder of this Security specified in the register
of Securities, or, upon written application by a Holder of an aggregate
Principal Amount of greater than U.S. $5 million to the Security Registrar
setting forth wire instructions not later than ten days prior to the relevant
payment date, such Holder may receive payment by wire transfer in immediately
available funds, in such lawful money of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.
The Issue Date of this Security is December 15, 2006.
Reference is made to the further provisions of this Security set forth
on the reverse hereof, including, without limitation, provisions giving the
Holder of the Security the right to require redemption of this Security on each
of December 15, 2011, December 15, 2016 and December 15, 2021, the right to
convert this Security into Common Stock of the Company the right of the Holder
of this Security to require the Company to repurchase this Security and upon
certain events, in each case, on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place. Capitalized terms used but not defined herein
shall have such meanings as are ascribed to such terms in the Indenture.
This Security shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State.
A-3
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXXX & WESSON HOLDING CORPORATION
By:
------------------------------------
Authorized Signatory
------------------------------------
A-4
EXHIBIT B
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 4% Senior Convertible Notes Due 2026 (the
"Securities"), all issued or to be issued under and pursuant to an Indenture,
dated as of December 15, 2006 (the "Indenture"), between the Company and The
Bank of New York Trust Company, N.A. (the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities.
The indebtedness evidenced by the Securities is unsecured and
unsubordinated senior indebtedness of the Company and ranks equally with the
Company's other unsecured and unsubordinated senior indebtedness.
1. Interest Rate. Interest on the Securities shall be payable
semi-annually in arrears on each Interest Payment Date to Holders
of record on the Record Date immediately preceding such Interest
Payment Date. Interest on the Securities shall accrue at a rate
of 4% per annum. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. Interest on the
Securities shall accrue from the most recent date to which
interest has been paid, or if no interest has been paid, from
December 15, 2006, until the Principal Amount is paid or duly
made available for payment.
2. Redemption. No sinking fund is provided for the Securities. The
Securities are redeemable at the option of the Company at any
time after December 15, 2009 and prior to December 15, 2011 if
the Common Stock of the Company Closing Price of the Common Stock
on no fewer than 20 Trading Days of the 30 consecutive Trading
Days immediately preceding the applicable Redemption Notice Date
exceeded 150% of the Conversion Price. From and after December
15, 2011, the Company may, at its option, redeem the Securities
in whole or in part at the Redemption Price. Subject to the terms
and conditions of the Indenture, the Holder shall have the right
by giving a redemption notice to require the Company to redeem
the Holder's Securities in whole or in part on any of December
15, 2011, December 15, 2016 and/or December 15, 2021 at the
election of the Holder at the Redemption Price.
3. Repurchase by the Company at the Option of the Holder Upon a
Fundamental Change. Subject to the terms and conditions of the
Indenture, the Company shall become obligated, at the option of
the Holder, to repurchase the Securities if a Fundamental Change
occurs at any time prior to the Stated Maturity at the
Fundamental Change Repurchase Price.
B-1
4. Withdrawal of Fundamental Change Repurchase Notice. Holders have
the right to withdraw, in whole or in part, any Fundamental
Change Repurchase Notice, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of
the Indenture.
5. Payment of Redemption Price and Fundamental Change Repurchase
Price. If cash sufficient to pay the Redemption Price or
Fundamental Change Repurchase Price, as the case may be, of all
Securities or portions thereof to be redeemed or repurchased on a
Redemption Date or on a Fundamental Change, as the case may be,
is deposited with the Paying Agent on the Business Day following
the Redemption Date or the Fundamental Change Settlement Date, as
the case may be, the Securities to be redeemed or repurchased
will cease to be outstanding and interest will cease to accrue on
such Securities (or portions thereof) immediately after such
Redemption Date or Fundamental Change Settlement Date, as the
case may be, and the Holder thereof shall have no other rights as
such (other than the right to receive the Redemption Price or
Fundamental Change Repurchase Price, as the case may be) upon
surrender of such Security.
6. Conversion. Subject to the terms and conditions of the Indenture,
a Holder may convert at any time each of its Securities into
shares of the Company's common stock at the Conversion Price. The
Conversion Price in effect at any given time is subject to
adjustment. A Holder may convert fewer than all of such Holder's
Securities so long as the Securities converted are an integral
multiple of $1,000 principal amount. If this Security shall be
surrendered for conversion during the period from the close of
business on the Record Date to the opening of business on the day
immediately following the Interest Payment Date, it shall be
accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such Interest
Payment Date on the Principal Amount being converted; provided,
however, that no such payment need be made if there shall exist
at the time of conversion a default in the payment of interest on
the Securities. If this Security shall be surrendered for
conversion during the period subsequent to the close of business
on the Interest Payment Date to the opening of business on the
Record Date preceding the next Interest Payment Date, it shall be
accompanied by payment, in funds acceptable to the Company, of an
amount equal to the accrued interest on such Interest Payment
Date on the Principal Amount being converted; provided, however,
that no such payment need be made if there shall exist at the
time of conversion a default in the payment of interest on the
Securities.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- In the event of a deposit
or withdrawal of an interest in this Security, including an exchange, transfer,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.]
B-2
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted Security, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities, or to a prospective purchaser of
any such security designated by any such Holder, to the extent required to
permit compliance by any such Holder with Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).]
If an Event of Default shall occur and be continuing, the Principal
Amount plus accrued and unpaid interest through such date on all the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate Principal Amount of the Outstanding
Securities. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate Principal Amount of the Outstanding
Securities, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of any provision of or applicable to this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding in
respect of the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default in respect of the
Securities, the Holders of not less than 25% in aggregate Principal Amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity satisfactory to it, the Trustee shall not have
received from the Holders of a majority in Principal Amount of Outstanding
Securities a direction inconsistent with such request, and the Trustee shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of said principal hereof or interest hereon on or after the respective
due dates expressed herein or for the enforcement of any conversion right.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Principal Amount or Fundamental Change
Repurchase Price of, or interest on, this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
B-3
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate Principal Amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form in denominations
of $1,000 and any integral multiple of $1,000 above that amount, as provided in
the Indenture and subject to certain limitations therein set forth. Securities
are exchangeable for a like aggregate Principal Amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-4
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
_____________________________________________
_____________________________________________
_____________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-5
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act, as amended (the "Securities Act"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date set forth on the
face of this Security, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that this Security is being transferred:
[Check One]
(1) _____ to the Company or a subsidiary thereof; or
(2) _____ to a "Qualified Institutional Buyer" pursuant to and in compliance
with Rule 144A under the Securities Act; or
(3) _____ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act.
Unless one of the above boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof, provided that if box (3) is checked,
the Company may require, prior to registering any such transfer of the
Securities, in its sole discretion, such legal opinions, certifications and
other information as the Company may reasonably request to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Security Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.09 of the Indenture shall have
been satisfied.
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-6
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account in respect of which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Name of Holder:
------------------------
Date: Signed:
------------------------------- --------------------------------
NOTICE: To be executed by an executive officer.
B-7
CONVERSION NOTICE
If you want to convert this Security into Common Stock of the Company,
check the box: [ ]
To convert only part of this Security, state the Principal Amount to
be converted (which must be $1,000 or an integral multiple of $1,000):
$_________________________________________
If you want the stock certificate made out in another person's name,
fill in the form below:
________________________________________________________
(Insert other person's social security or tax ID no.)
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Print or type other person's name, address and zip code)
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-8
EXHIBIT C
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Bank of New York Trust Company, N.A., as Trustee, certifies that
this is one of the Securities referred to in the within-mentioned Indenture.
Date: THE BANK OF NEW YORK TRUST COMPANY,
------------------------------- N.A., as Trustee
By:
------------------------------------
Authorized Signatory
X-0
XXXXXXX X
XXXX XX XXXXXXXXXXX XXXXXX XXXXXXXXXX NOTICE
_________, 20__
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Attention: __________________________
Re: Xxxxx & Wesson Holdings Corporation (the "Company")
5% Senior Convertible Notes Due 2011
This is a Fundamental Change Repurchase Notice as defined in Section 11.10 of
the Indenture dated as of December 15, 2006 (the "Indenture") between the
Company and The Bank of New York Trust Company, N.A., as Trustee. Terms used but
not defined herein shall have the meanings ascribed to them in the Indenture.
Certificate No(s). of Securities: ___________________
I intend to deliver the following aggregate Principal Amount of Securities for
purchase by the Company pursuant to Section 11.10 of the Indenture (in multiples
of $1,000):
$_____________________________
I hereby agree that the Securities will be purchased as of the Fundamental
Change Settlement Date pursuant to the terms and conditions of the Indenture.
Signed:
-----------------------------------------------------------------------
D-1
