Exhibit 4
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SECOND SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
XXXXXX XXXXXXX
(formerly known as XXXXXX XXXXXXX XXXX XXXXXX & CO.)
AND
JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK), Trustee
Dated as of October 8, 2002
SUPPLEMENTAL TO AMENDED AND RESTATED SENIOR INDENTURE
DATED MAY 1, 1999, AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL
SENIOR INDENTURE DATED AS OF SEPTEMBER 15, 2000
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THIS SECOND SUPPLEMENTAL SENIOR INDENTURE dated as of October 8, 2002 between
XXXXXX XXXXXXX (formerly known as Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.), a Delaware
corporation (the "Issuer"), and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Amended
and Restated Senior Indenture dated as of May 1, 1999, as supplemented by a
First Supplemental Senior Indenture dated as of September 15, 2000 (as so
supplemented, the "Indenture");
WHEREAS, the Issuer established and on (i) August 29, 2000 issued its
Medium-term Notes, Series C, Senior Fixed Rate Notes, 8% Reset Performance
Equity-linked Redemption Quarterly-pay SecuritiesSM ("Reset PERQS") due October
30, 2002, Mandatorily Exchangeable for Shares of Common Stock of Yahoo! Inc.
(the "Yahoo! Reset PERQS"), (ii) November 10, 2000 issued its Medium-term Notes,
Series C, Senior Fixed Rate Notes, 9% Reset PERQS due December 30, 2002,
Mandatorily Exchangeable for Shares of Common Stock of Xilinx, Inc. (the "Xilinx
Reset PERQS"), (iii) December 27, 2000 issued its Medium-term Notes, Series C,
Senior Fixed Rate Notes, 8% Reset PERQS due February 28, 2003, Mandatorily
Exchangeable for American Depositary Receipts Representing Ordinary Shares of
Nokia Corporation (the "Nokia Reset PERQS"), (iv) January 17, 2002 issued its
Medium-term Notes, Series C, Senior Fixed Rate Notes, 20.35% Performance
Equity-linked Redemption Quarterly-pay SecuritiesSM ("PERQS") due January 15,
2003, Mandatorily Exchangeable for Shares of Common Stock of Siebel Systems,
Inc. (the "Siebel PERQS"), (v) June 18, 2001 issued its Medium-term Notes,
Series C, Senior Fixed Rate Notes, 8% Stock Participation Accreting Redemption
Quarterly-pay SecuritiesSM ("SPARQS") due June 1, 2003, Mandatorily Exchangeable
for Shares of Common Stock of Cisco Systems, Inc. (the "Cisco SPARQS"), (vi)
July 24, 2001 issued its Medium-term Notes, Series C, Senior Fixed Rate Notes,
8% SPARQS due June 30, 2003, Mandatorily Exchangeable for Shares of Common Stock
of Oracle Corporation (the "Oracle SPARQS"), (vii) October 24, 2001 issued its
Medium-term Notes, Series C, Senior Fixed Rate Notes, 8% SPARQS due April 15,
2003, Mandatorily Exchangeable for American Depositary Receipts Representing
Ordinary Shares of Nokia Corporation (the "Nokia SPARQS"), (viii) January 10,
2002 issued its Medium-term Notes, Series C, Senior Fixed Rate Notes, 12% SPARQS
Due June 30, 2003, Mandatorily Exchangeable for Shares of Common Stock of
Juniper Networks, Inc. (the "Juniper SPARQS"), (ix) January 31, 2002 issued its
Medium-term Notes, Series C, Senior Fixed Rate Notes, 6.30% SPARQS due
June 30, 2003, Mandatorily Exchangeable for Shares of Common Stock of The Gap,
Inc. (the "Gap SPARQS"), (x) February 22, 2002 issued its Medium-term Notes,
Series C, Senior Fixed Rate Notes, 10% SPARQS due August 30, 2003, Mandatorily
Exchangeable for Shares of Common Stock of Siebel Systems, Inc. (the "Siebel
SPARQS"), (xi) April 16, 2002 issued its Medium-term Notes, Series C, Senior
Fixed Rate Notes, 8% SPARQS due September 15, 2003, Mandatorily Exchangeable for
Shares of Common Stock of Texas Instruments Incorporated (the "Texas Instruments
SPARQS"), (xii) May 29, 2002 issued its Medium-term Notes, Series C, Senior
Fixed Rate Notes, 10% SPARQS due November 30, 2003, Mandatorily Exchangeable for
Shares of Common Stock of Xxxxxxxx Xxxxxxxxxxxx (the "Qualcomm SPARQS") and
(xiii) July 16, 2002 issued its Medium-term Notes, Series C, Senior Fixed Rate
Notes, 3% TRIGGERS due August 30, 2003, Based on the Performance of the Common
Stock of Cisco Systems, Inc. (the "Cisco TRIGGERS") (collectively, the "Notes");
WHEREAS, Section 8.01 of the Indenture provides that, without the
consent of the Holders of any Securities or Coupons, the Issuer, when authorized
by a resolution of its Board of Directors, and the Trustee may enter into
indentures supplemental to the Indenture for the purpose of, among other things,
making any provisions as the Issuer may deem necessary or desirable, subject to
the conditions set forth therein; provided that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons.
WHEREAS, the Issuer desires to modify certain provisions of the Notes,
including the payment delivery obligation and notice obligation upon the
occurrence of a price-triggered acceleration event under the Notes or a
de-listing triggered acceleration event under the Nokia Reset PERQS or the Nokia
SPARQS;
WHEREAS, the entry into this Second Supplemental Senior Indenture by
the parties hereto is in all respects authorized by the provisions of the
Indenture; and
WHEREAS, all things necessary to make this Second Supplemental Senior
Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Notes as follows:
2
ARTICLE 1
Section 1.01. Amendment of the Notes. The terms of the Notes are hereby
amended in the following respects:
(a) The terms of the Yahoo! Reset PERQS are hereby amended in the
following respects:
(i) The definition of Exchange at Maturity within the Yahoo! Reset
PERQS is hereby amended by inserting the phrase "(a) with respect to any
interest on this Reset PERQS payable at maturity or (b)" in the first sentence
of the seventh paragraph after the words "and of the amount of any cash to be
paid" and before the words "in lieu of fractional shares of Yahoo! Stock".
(ii) The definition of Acceleration Event within the Yahoo! Reset PERQS
is hereby amended by deleting the existing definition and inserting in lieu
thereof the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Yahoo! Stock and the
Exchange Factor is less than $4.00, as
determined by the Calculation Agent, the
Maturity Date of this Reset PERQS shall be
deemed to be accelerated to such date (the
"date of acceleration"). Upon such
acceleration, the holder of this Reset PERQS
shall receive with respect to each $27.9375
principal amount of this Reset PERQS on the
third Business Day following the date of
acceleration, but in no event later than the
scheduled Maturity Date, (the "date of
delivery") (i) a number of shares of Yahoo!
Stock at the then current Exchange Ratio, as
adjusted by the then current Exchange
Factor, (ii) accrued but unpaid interest on
each $27.9375 principal amount of this Reset
PERQS to but excluding the date of delivery
and (iii) an amount of cash as determined by
the Calculation Agent equal to the sum of
the present values of the remaining
scheduled payments of interest on each
$27.9375 principal amount of this
3
Reset PERQS (excluding the amounts included
in clause (ii) above) discounted to the date
of delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this Reset PERQS.
See also "Antidilution Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Yahoo!
Reset PERQS is hereby amended by inserting the following sentence after the
third sentence of paragraph 5:
The holder of this Reset PERQS shall also receive
accrued but unpaid interest due with respect to each
$27.9375 principal amount of this Reset PERQS to but
excluding the date of such acceleration.
(b) The terms of the Xilinx Reset PERQS are hereby amended in the
following respects:
(i) The definition of Exchange at Maturity within the Xilinx Reset
PERQS is hereby amended by inserting the phrase "(a) with respect to any
interest on this Reset PERQS payable at maturity or (b)" in the first sentence
of the seventh paragraph after the words "and of the amount of any cash to be
paid" and before the words "in lieu of fractional shares of Xilinx Stock ".
(ii) The definition of Acceleration Event within the Xilinx Reset PERQS
is hereby amended by deleting the existing definition and inserting in lieu
thereof the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Xilinx Stock and the
Exchange Factor is less than $4.00, as
determined by the Calculation Agent, the
Maturity Date of this Reset PERQS shall be
deemed to be accelerated to such date (the
"date of acceleration"). Upon such
acceleration, the holder of this Reset PERQS
shall receive with respect to each $13.3375
principal amount of this Reset PERQS on
4
the third Business Day following the date of
acceleration, but in no event later than the
scheduled Maturity Date, (the "date of
delivery") (i) a number of shares of Xilinx
Stock at the then current Exchange Ratio, as
adjusted by the then current Exchange
Factor, (ii) accrued but unpaid interest on
each $13.3375 principal amount of this Reset
PERQS to but excluding the date of delivery
and (iii) an amount of cash as determined by
the Calculation Agent equal to the sum of
the present values of the remaining
scheduled payments of interest on each
$13.3375 principal amount of this Reset
PERQS (excluding the amounts included in
clause (ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this Reset PERQS.
See also "Antidilution Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Xilinx
Reset PERQS is hereby amended by inserting the following sentence after the
third sentence of paragraph 5:
The holder of this Reset PERQS shall also receive
accrued but unpaid interest due with respect to each
$13.3375 principal amount of this Reset PERQS to but
excluding the date of such acceleration.
(c) The terms of the Nokia Reset PERQS are hereby amended in the
following respects:
(i) The definition of Exchange at Maturity within the Nokia Reset PERQS
is hereby amended by inserting the phrase "(a) with respect to any interest on
this Reset PERQS payable at maturity or (b)" in the first sentence of the
seventh paragraph after the words "and of the amount of any cash to be paid" and
before the words "in lieu of fractional Nokia ADRs".
5
(ii) The definition of Acceleration Event within the Nokia Reset PERQS
is hereby amended by deleting the existing definition and inserting in lieu
thereof the following:
ACCELERATION EVENT: If on any date (i) the product of the Market
Price per Nokia ADR and the Exchange Factor
is less than $4.00, as determined by the
Calculation Agent, or (ii) Nokia ADRs are
not listed on a United States national
securities exchange and have not been
replaced by Nokia ordinary shares listed on
a United States national securities
exchange, the Maturity Date of this Reset
PERQS shall be deemed to be accelerated to
such date (the "date of acceleration"). Upon
such acceleration, the holder of this Reset
PERQS shall receive with respect to each
$7.9875 principal amount of this Reset PERQS
on the third Business Day following the date
of acceleration, but in no event later than
the scheduled Maturity Date, (the "date of
delivery") (i) a number of Nokia ADRs at the
then current Exchange Ratio, as adjusted by
the then current Exchange Factor, (ii)
accrued but unpaid interest on each $7.9875
principal amount of this Reset PERQS to but
excluding the date of delivery and (iii) an
amount of cash as determined by the
Calculation Agent equal to the sum of the
present values of the remaining scheduled
payments of interest on each $7.9875
principal amount of this Reset PERQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this Reset PERQS.
See also "Antidilution Adjustments" below.
6
(iii) The definition of Antidilution Adjustments within the Nokia Reset
PERQS is hereby amended by inserting the following sentence after the third
sentence of paragraph 5:
The holder of this Reset PERQS shall also receive
accrued but unpaid interest due with respect to each
$7.9875 principal amount of this Reset PERQS to but
excluding the date of such acceleration.
(d) The terms of the Siebel PERQS are hereby amended in the following
respects:
(i) The definition of Exchange at Maturity within the Siebel PERQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
PERQS payable at maturity or (b)" in the first sentence of the fourth paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Siebel Stock".
(ii) The definition of Acceleration Event within the Siebel PERQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Siebel Stock and the
Exchange Factor is less than $2.00, as
determined by the Calculation Agent, the
Maturity Date of this PERQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this PERQS shall receive with
respect to each $35.00 principal amount of
this PERQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Siebel Stock at the then
current Exchange Ratio, as adjusted by the
then current Exchange Factor, (ii) accrued
but unpaid interest on each $35.00 principal
amount of this PERQS to but excluding the
date of delivery and (iii) an amount of cash
as determined by the Calculation Agent equal
to the sum of the present values of the
7
remaining scheduled payments of interest on
each $35.00 principal amount of this PERQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this PERQS. See
also "Antidilution Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Siebel
PERQS is hereby amended by inserting the following sentence after the third
sentence of paragraph 5:
The holder of this PERQS shall also receive accrued
but unpaid interest due with respect to each $35.00
principal amount of this PERQS to but excluding the
date of such acceleration.
(e) The terms of the Cisco SPARQS are hereby amended in the following
respects:
(i) The definition of Exchange at Maturity within the Cisco SPARQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
SPARQS payable at maturity or (b)" in the first sentence of the fourth paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Cisco Stock".
(ii) The definition of Acceleration Event within the Cisco SPARQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Cisco Stock and the
Exchange Ratio is less than $4.00, as
determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $20.38
8
principal amount of this SPARQS on the third
Business Day following the date of
acceleration, but in no event later than the
scheduled Maturity Date, (the "date of
delivery") (i) a number of shares of Cisco
Stock at the then current Exchange Ratio,
(ii) accrued but unpaid interest on each
$20.38 principal amount of this SPARQS to
but excluding the date of delivery and (iii)
an amount of cash as determined by the
Calculation Agent equal to the sum of the
present values of the remaining scheduled
payments of interest on each $20.38
principal amount of this SPARQS (excluding
the amounts included in clause (ii) above)
discounted to the date of delivery based on
the interpolated U.S. dollar zero swap rate
from and including the date of delivery to
but excluding each applicable payment date.
In no event shall the date of delivery be
later than the scheduled Maturity Date of
this SPARQS. See also "Antidilution
Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Cisco
SPARQS is hereby amended by inserting the following sentence after the second
sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $20.38
principal amount of this SPARQS to but excluding the
date of such acceleration.
(f) The terms of the Oracle SPARQS are hereby amended in the following
respects:
(i) The definition of Exchange at Maturity within the Oracle SPARQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
SPARQS payable at maturity or (b)" in the first sentence of the fourth paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Oracle Stock".
9
(ii) The definition of Acceleration Event within the Oracle SPARQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Oracle Stock and the
Exchange Ratio is less than $4.00, as
determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $19.50 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Oracle Stock at the then
current Exchange Ratio, (ii) accrued but
unpaid interest on each $19.50 principal
amount of this SPARQS to but excluding the
date of delivery and (iii) an amount of cash
as determined by the Calculation Agent equal
to the sum of the present values of the
remaining scheduled payments of interest on
each $19.50 principal amount of this SPARQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this SPARQS. See
also "Antidilution Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Oracle
SPARQS is hereby amended by inserting the following sentence after the second
sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $19.50
principal
10
amount of this SPARQS to but excluding the date of
such acceleration.
(g) The terms of the Nokia SPARQS are hereby amended in the following
respects:
(i) The definition of Exchange at Maturity within the Nokia SPARQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
SPARQS payable at maturity or (b)" in the first sentence of the third paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional Nokia ADR".
(ii) The definition of Acceleration Event within the Nokia SPARQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date (i) the product of the Market
Price per Nokia ADR and the Exchange Ratio
is less than $2.00, as determined by the
Calculation Agent, or (ii) Nokia ADRs are
not listed on a United States national
securities exchange and have not been
replaced by Nokia ordinary shares listed on
a United States national securities
exchange, the Maturity Date of this SPARQS
shall be deemed to be accelerated to such
date (the "date of acceleration"). Upon such
acceleration, the holder of this SPARQS
shall receive with respect to each $19.50
principal amount of this SPARQS on the third
Business Day following the date of
acceleration, but in no event later than the
scheduled Maturity Date, (the "date of
delivery") (i) a number of shares of Nokia
ADRs at the then current Exchange Ratio,
(ii) accrued but unpaid interest on each
$19.50 principal amount of this SPARQS to
but excluding the date of delivery and (iii)
an amount of cash as determined by the
Calculation Agent equal to the sum of the
present values of the remaining scheduled
payments of interest on each $19.50
principal amount of this SPARQS
11
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this SPARQS. See
also "Antidilution Adjustments" below.
(iii) The definition of Antidilution Adjustments within the Nokia
SPARQS is hereby amended by inserting the following sentence after the second
sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $19.50
principal amount of this SPARQS to but excluding the
date of such acceleration.
(h) The terms of the Juniper SPARQS are hereby amended in the following
respects:
(i) The definition of Maturity Date within the Juniper SPARQS is hereby
amended by deleting the first two paragraphs of the existing definition and
inserting in lieu thereof the following:
June 30, 2003, subject to acceleration as described
below and extension in accordance with the following
paragraph in the event of a Market Disruption Event
on June 13, 2003.
If the Final Call Notice Date is postponed due to a
Market Disruption Event or otherwise and the Issuer
exercises the Xxxxxx Xxxxxxx Call Right, the Maturity
Date shall be postponed so that the Maturity Date
will be the fifteenth calendar day following the
Final Call Notice Date or, if such fifteenth calendar
day is not a scheduled Trading Day, the immediately
succeeding scheduled Trading Day. See "Final Call
Notice Date" below.
(ii) The definition of Exchange at Maturity within the Juniper SPARQS
is hereby amended by inserting the phrase "(a) with respect to any interest on
this SPARQS payable at maturity or (b)" in the first sentence of the third
paragraph
12
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Juniper Stock".
(iii) The definition of Acceleration Event within the Juniper SPARQS
is hereby amended by deleting the existing definition and inserting in lieu
thereof the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Juniper Stock and the
Exchange Ratio is less than $2.00, as
determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $21.99 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Juniper Stock at the then
current Exchange Ratio, (ii) accrued but
unpaid interest on each $21.99 principal
amount of this SPARQS to but excluding the
date of delivery and (iii) an amount of cash
as determined by the Calculation Agent equal
to the sum of the present values of the
remaining scheduled payments of interest on
each $21.99 principal amount of this SPARQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this SPARQS. See
also "Antidilution Adjustments" below.
(iv) The definition of Antidilution Adjustments within the Juniper
SPARQS is hereby amended by (A) inserting the parenthetical phrase "(unless the
Issuer exercises the Xxxxxx Xxxxxxx Call Right)" in the second sentence of
13
paragraph 5 after the words "on which such cash is distributed to holders of
Juniper Stock" and before the words "and the holder of this SPARQS" and (B)
inserting the following sentence after the second sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $21.99
principal amount of this SPARQS to but excluding the
date of such acceleration.
(i) The terms of the Gap SPARQS are hereby amended in the following
respects:
(i) The definition of Maturity Date within the Gap SPARQS is hereby
amended by deleting the first two paragraphs of the existing definition and
inserting in lieu thereof the following:
June 30, 2003, subject to acceleration as described
below and extension in accordance with the following
paragraph in the event of a Market Disruption Event
on June 13, 2003.
If the Final Call Notice Date is postponed due to a
Market Disruption Event or otherwise and the Issuer
exercises the Xxxxxx Xxxxxxx Call Right, the Maturity
Date shall be postponed so that the Maturity Date
will be the fifteenth calendar day following the
Final Call Notice Date or, if such fifteenth calendar
day is not a scheduled Trading Day, the immediately
succeeding scheduled Trading Day. See "Final Call
Notice Date" below.
(ii) The definition of Exchange at Maturity within the Gap SPARQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
SPARQS payable at maturity or (b)" in the first sentence of the third paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Gap Stock".
(iii) The definition of Acceleration Event within the Gap SPARQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Gap Stock and the
Exchange Ratio is less than $2.00, as
determined by the Calculation Agent, the
14
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $15.05 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Gap Stock at the then current
Exchange Ratio, (ii) accrued but unpaid
interest on each $15.05 principal amount of
this SPARQS to but excluding the date of
delivery and (iii) an amount of cash as
determined by the Calculation Agent equal to
the sum of the present values of the
remaining scheduled payments of interest on
each $15.05 principal amount of this SPARQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date of this SPARQS. See
also "Antidilution Adjustments" below.
(iv) The definition of Antidilution Adjustments within the Gap SPARQS
is hereby amended by (A) inserting the parenthetical phrase "(unless the Issuer
exercises the Xxxxxx Xxxxxxx Call Right)" in the second sentence of paragraph 5
after the words "on which such cash is distributed to holders of Gap Stock" and
before the words "and the holder of this SPARQS" and (B) inserting the following
sentence after the second sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $15.05
principal amount of this SPARQS to but excluding the
date of such acceleration.
(j) The terms of the Siebel SPARQS are hereby amended in the following
respects:
15
(i) The definition of Maturity Date within the Siebel SPARQS is hereby
amended by deleting the first two paragraphs of the existing definition and
inserting in lieu thereof the following:
August 30, 2003, subject to acceleration as described
below and extension in accordance with the following
paragraph in the event of a Market Disruption Event
on August 20, 2003.
If the Final Call Notice Date is postponed due to a
Market Disruption Event or otherwise and the Issuer
exercises the Xxxxxx Xxxxxxx Call Right, the Maturity
Date shall be postponed so that the Maturity Date
will be the tenth calendar day following the Final
Call Notice Date. See "Final Call Notice Date" below.
(ii) The definition of Exchange at Maturity within the Siebel SPARQS is
hereby amended by inserting the phrase "(a) with respect to any interest on this
SPARQS payable at maturity or (b)" in the first sentence of the third paragraph
after the words "and of the amount of any cash to be paid" and before the words
"in lieu of any fractional share of Siebel Stock".
(iii) The definition of Acceleration Event within the Siebel SPARQS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Siebel Stock and the
Exchange Ratio is less than $2.00, as
determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $35.00 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Siebel Stock at the then
current Exchange Ratio, (ii) accrued but
unpaid interest on each $35.00 principal
amount of this SPARQS to
16
but excluding the date of delivery and (iii)
an amount of cash as determined by the
Calculation Agent equal to the sum of the
present values of the remaining scheduled
payments of interest on each $35.00
principal amount of this SPARQS (excluding
the amounts included in clause (ii) above)
discounted to the date of delivery based on
the interpolated U.S. dollar zero swap rate
from and including the date of delivery to
but excluding each applicable payment date.
In no event shall the date of delivery be
later than the scheduled Maturity Date for
this SPARQS. See also "Antidilution
Adjustments" below.
(iv) The definition of Antidilution Adjustments within the Siebel
SPARQS is hereby amended by (A) inserting the parenthetical phrase "(unless the
Issuer exercises the Xxxxxx Xxxxxxx Call Right)" in the second sentence of
paragraph 5 after the words "on which such cash is distributed to holders of
Siebel Stock" and before the words "and the holder of this SPARQS" and (B)
inserting the following sentence after the second sentence of paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $35.00
principal amount of this SPARQS to but excluding the
date of such acceleration.
(k) The terms of the Texas Instruments SPARQS are hereby amended in the
following respects:
(i) The definition of Maturity Date within the Texas Instruments SPARQS
is hereby amended by deleting the first two paragraphs of the existing
definition and inserting in lieu thereof the following:
September 15, 2003, subject to acceleration as
described below and extension in accordance with the
following paragraph in the event of a Market
Disruption Event on September 5, 2003.
If the Final Call Notice Date is postponed due to a
Market Disruption Event or otherwise and the Issuer
exercises the Xxxxxx Xxxxxxx Call Right, the Maturity
Date shall be
17
postponed so that the Maturity Date will be the tenth
calendar day following the Final Call Notice Date.
See "Final Call Notice Date" below.
(ii) The definition of Exchange at Maturity within the Texas
Instruments SPARQS is hereby amended by inserting the phrase "(a) with respect
to any interest on this SPARQS payable at maturity or (b)" in the first sentence
of the third paragraph after the words "and of the amount of any cash to be
paid" and before the words "in lieu of any fractional share of Texas Instruments
Stock".
(iii) The definition of Acceleration Event within the Texas
Instruments SPARQS is hereby amended by deleting the existing definition and
inserting in lieu thereof the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Texas Instruments Stock
and the Exchange Ratio is less than $2.00,
as determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $32.32 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Texas Instruments Stock at the
then current Exchange Ratio, (ii) accrued
but unpaid interest on each $32.32 principal
amount of this SPARQS to but excluding the
date of delivery and (iii) an amount of cash
as determined by the Calculation Agent equal
to the sum of the present values of the
remaining scheduled payments of interest on
each $32.32 principal amount of this SPARQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
18
the date of delivery be later than the
scheduled Maturity Date of this SPARQS. See
also "Antidilution Adjustments" below.
(iv) The definition of Antidilution Adjustments within the Texas
Instruments SPARQS is hereby amended by (A) inserting the parenthetical phrase
"(unless the Issuer exercises the Xxxxxx Xxxxxxx Call Right)" in the second
sentence of paragraph 5 after the words "on which such cash is distributed to
holders of Texas Instruments Stock" and before the words "and the holder of this
SPARQS" and (B) inserting the following sentence after the second sentence of
paragraph 5:
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $32.32
principal amount of this SPARQS to but excluding the
date of such acceleration.
(l) The terms of the Qualcomm SPARQS are hereby amended in the
following respects:
(i) The definition of Maturity Date within the Qualcomm SPARQS is
hereby amended by deleting the first two paragraphs of the existing definition
and inserting in lieu thereof the following:
November 30, 2003, subject to acceleration as
described below and extension in accordance with the
following paragraph in the event of a Market
Disruption Event on November 20, 2003.
If the Final Call Notice Date is postponed due to a
Market Disruption Event or otherwise and the Issuer
exercises the Xxxxxx Xxxxxxx Call Right, the Maturity
Date shall be postponed so that the Maturity Date
will be the tenth calendar day following the Final
Call Notice Date. See "Final Call Notice Date" below.
(ii) The definition of Exchange at Maturity within the Qualcomm SPARQS
is hereby amended by inserting the phrase "(a) with respect to any interest on
this SPARQS payable at maturity or (b)" in the first sentence of the third
paragraph after the words "and of the amount of any cash to be paid" and before
the words "in lieu of any fractional share of Qualcomm Stock".
19
(iii) The definition of Acceleration Event within the Qualcomm SPARQS
is hereby amended by deleting the existing definition and inserting in lieu
thereof the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Qualcomm Stock and the
Exchange Ratio is less than $2.00, as
determined by the Calculation Agent, the
Maturity Date of this SPARQS shall be deemed
to be accelerated to such date (the "date of
acceleration"). Upon such acceleration, the
holder of this SPARQS shall receive with
respect to each $32.62 principal amount of
this SPARQS on the third Business Day
following the date of acceleration, but in
no event later than the scheduled Maturity
Date, (the "date of delivery") (i) a number
of shares of Qualcomm Stock at the then
current Exchange Ratio, (ii) accrued but
unpaid interest on each $32.62 principal
amount of this SPARQS to but excluding the
date of delivery and (iii) an amount of cash
as determined by the Calculation Agent equal
to the sum of the present values of the
remaining scheduled payments of interest on
each $32.62 principal amount of this SPARQS
(excluding the amounts included in clause
(ii) above) discounted to the date of
delivery based on the interpolated U.S.
dollar zero swap rate from and including the
date of delivery to but excluding each
applicable payment date. In no event shall
the date of delivery be later than the
scheduled Maturity Date for this SPARQS. See
also "Antidilution Adjustments" below.
(iv) The definition of Antidilution Adjustments within the Qualcomm
SPARQS is hereby amended by (A) inserting the parenthetical phrase "(unless the
Issuer exercises the Xxxxxx Xxxxxxx Call Right)" in the second sentence of
paragraph 5 after the words "on which such cash is distributed to holders of
Qualcomm Stock" and before the words "and the holder of this SPARQS" and (B)
inserting the following sentence after the second sentence of paragraph 5:
20
The holder of this SPARQS shall also receive accrued
but unpaid interest due with respect to each $32.62
principal amount of this SPARQS to but excluding the
date of such acceleration.
(m) The terms of the Cisco TRIGGERS are hereby amended in the following
respects:
(i) The definition of Maturity Date within the Cisco TRIGGERS is hereby
amended by deleting the first two paragraphs of the existing definition and
inserting in lieu thereof the following:
August 30, 2003, subject to acceleration as described
below and extension in accordance with the following
paragraph in the event of a Market Disruption Event
on August 28, 2003.
If the Valuation Date is postponed due to a Market
Disruption Event or otherwise, the Maturity Date
shall be the second scheduled Trading Day following
the Valuation Date. See "Valuation Date,"
"Acceleration Event" and "Alternate Exchange
Calculation in Case of an Event of Default" below.
(ii) The definition of Acceleration Event within the Cisco TRIGGERS is
hereby amended by deleting the existing definition and inserting in lieu thereof
the following:
ACCELERATION EVENT: If on any date the product of the Market
Price per share of Cisco Stock and the
Adjustment Factor is less than $2.00, as
determined by the Calculation Agent, the
Maturity Date of this TRIGGERS shall be
deemed to be accelerated to such date (the
"date of acceleration"). Upon such
acceleration, the holder of this TRIGGERS
shall receive with respect to each $7.025
principal amount of this TRIGGERS on the
third Business Day following the date of
acceleration, but in no event later than the
scheduled Maturity Date, (the "date of
delivery") (i) a number of shares of Cisco
Stock at the then current Exchange Ratio,
21
(ii) accrued but unpaid interest on each
$7.025 principal amount of this TRIGGERS to
but excluding the date of delivery and (iii)
an amount of cash as determined by the
Calculation Agent equal to the sum of the
present values of the remaining scheduled
payments of interest on each $7.025
principal amount of this TRIGGERS (excluding
the amounts included in clause (ii) above)
discounted to the date of delivery based on
the interpolated U.S. dollar zero swap rate
from and including the date of delivery to
but excluding each applicable payment date.
In no event shall the date of delivery be
later than the scheduled Maturity Date of
this TRIGGERS. See also "Antidilution
Adjustments" below.
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.01. Further Assurances. The Issuer will, upon request by the
Trustee, execute and deliver such further instruments and do such further acts
as may reasonably be necessary or proper to carry out more effectively the
purposes of this Second Supplemental Senior Indenture.
Section 2.02. Other Terms of Indenture. Except insofar as herein
otherwise expressly provided, all provisions, terms and conditions of the
Indenture are in all respects ratified and confirmed and shall remain in full
force and effect.
Section 2.03. Terms Defined. All terms defined elsewhere in the
Indenture shall have the same meanings when used herein.
Section 2.04. Governing Law. This Second Supplemental Senior Indenture
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
Section 2.05. Counterparts. This Second Supplemental Senior Indenture
may be executed in any number of counterparts, each of which shall be an
22
original, but such counterparts shall together constitute but one and the same
instrument.
Section 2.06. Responsibility of the Trustee. The recitals contained
herein shall be taken as the statements of the Issuer, and the Trustee assumes
no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Senior Indenture.
23
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Senior Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of October 8, 2002.
XXXXXX XXXXXXX (formerly known
as Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.)
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Assistant Secretary
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), TRUSTEE
By: /s/ Xxxxx Xx
-----------------------------------
Name: Xxxxx Xx
Title: Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Trust Officer
24
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 8th day of October 2002 before me personally came Xxxxxxxxx X.
Xxxxx to me personally known, who, being by me duly sworn, did depose and say
that he resides at New York, N.Y.; that he is the Treasurer of Xxxxxx Xxxxxxx
(formerly known as Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.), one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 8th day of October 2002 before me personally came Xxxxx Xx to
me personally known, who, being by me duly sworn, did depose and say that she
resides at Bethpage, N.Y.; that she is a Vice President of JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), one of the corporations described
in and which executed the above instrument; that she knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation and that she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Xxxxx Xxxxx
------------------------------------
Notary Public
26
