EXHIBIT 4.25
Supplemental Indenture dated as of October __, 1996 between
SunAmerica Inc., a Maryland corporation (the "Company"), and The First
National Bank of Chicago, a national banking association, as Trustee under the
Indenture dated as of March 15, 1995, as supplemented (the "Indenture"; terms
defined in the Indenture have such defined meanings herein and references
herein to Sections and Articles refer to Sections and Articles in the
Indenture amended hereby), between the Company and the Trustee.
WHEREAS, the Company desires to amend the Indenture to
authorize the issuance of Debentures of any series convertible into any cash,
securities or property, at the option of the Company or holders of Debentures
of such series or upon the happening of some event or otherwise, as specified
for the Debentures of such series pursuant to Section 2.01.
WHEREAS, Section 9.01 authorizes supplemental indentures which
add to the covenants of the Company or make other provisions not inconsistent
with the Indenture which shall not adversely affect the interests of the
holders of the Debentures.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
The Company covenants and agrees with the Trustee as follows:
Article One
Amendment to Indenture
Section 1.01. The definition of "Outstanding" in Section 1.01
is hereby amended to add at the end thereof before the period: or Debentures
converted pursuant hereto.
Section 1.02. Section 2.01 is hereby amended by adding after
(13): (14) If the Debentures of the series are to be convertible into any
cash, security or property, at the option of the holders of such Debentures or
the Company or upon the happening of some event or otherwise, all terms
relating to such convertibility, including without limitation any term
inconsistent with the provisions of this Indenture relating to conversion.
Section 1.03. Section 2.08 is hereby amended by inserting
"conversion," after "redemption," on line 1.
Section 1.04. Section 3.02(a) is hereby amended by inserting
after the first sentence of the second paragraph: Each such notice shall also
specify any conversion price then applicable to such Debentures and when any
right to convert such Debentures or any portion thereof called for redemption
will expire.
Section 1.05. Section 3.05 is hereby amended to insert "or
converted" after "Debentures" in the fifth line.
Section 1.06. Section 4.02 is hereby amended to insert "or
conversion, if applicable," at the end of clause (i).
Section 1.07. Section 6.01(a)(2) is hereby amended to insert
at the end thereof: or default in the conversion of any Debenture of that
series made convertible pursuant to Section 2.01 and the continuance of such
default for a period of 45 days.
Section 1.08. Section 6.04 is hereby amended to insert, in the
5th line of the second paragraph thereof after "date": or the right to convert
such Debenture, if any, or to institute suit therefor.
Section 1.09. Section 9.01 is hereby amended to substitute ";
or" for the period at the end of clause (d) and to insert a new clause (e)
after clause (d):
(e) to add any provision hereto or change or delete any
provision hereof relating to the conversion of any Debentures, whether at the
option of the Holders or the Company or upon the happening of some event or
otherwise, provided that no such action shall adversely affect the interest of
Debentureholders.
Section 1.10. Article Fifteen is hereby added after Article
Fourteen:
ARTICLE FIFTEEN
CONVERSION OF Debentures
SECTION 15.01. Applicability of Article. The provisions of
this Article shall be applicable to the Debentures of any series which are
convertible before their maturity except as otherwise specified as
contemplated by Section 2.01 for Debentures of such series.
SECTION 15.02. Conversion. Subject to and upon compliance
with the provisions of this Article, any Debenture which by its terms
specified as contemplated by Section 2.01 is convertible into any cash,
securities or property ("Conversion Proceeds") may, at any time until and
including but not after the close of business on the date of maturity of such
Debenture, or in case such Debenture or some portion thereof shall be called
for redemption prior to such date, then, with respect to such Debenture or
such portion thereof as is so called, until and including but (if no
default is made in making due provision for the payment of the redemption
price) not after the close of business on the date fixed for redemption, be
converted, in whole, or in part in multiples of $1,000 principal amount, at
100% of the principal amount of such Debenture (or portion thereof), into
the Conversion Proceeds issuable upon conversion of such Debenture, at the
conversion price in effect at the Date of Conversion (as hereinafter
defined).
SECTION 15.03 Exercise of Conversion. In order to convert,
the holder of any Debenture to be converted shall surrender such Debenture to
the Company at any time during usual business hours at its office or agency
maintained for the purpose as provided in this Indenture, accompanied by a
fully executed written notice, in substantially the form set forth on the
reverse of the Debenture, that the holder elects to convert such Debenture or
a stated portion thereof constituting a multiple of $1,000 principal amount,
and, if such Debenture is surrendered for conversion during the period between
the close of business on any record date and the opening of business on the
following interest payment date and has not been called for redemption on a
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redemption date within such period (or on such interest payment date),
accompanied also by payment of an amount equal to the interest payable on such
interest payment date on the principal amount of the Debenture being
surrendered for conversion. Such notice shall also state the name or names
(with address) in which any certificate or certificates for Conversion
Proceeds constituting securities shall be issued. Debentures surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company duly executed by, the holder or
his attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Debenture as aforesaid, the
Company shall, subject to the provisions of this Article Fifteen, deliver the
Conversion Proceeds thereof at such office or agency to such holder, or on his
written order. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date (herein called the
"Date of Conversion") on which such notice shall have been received by the
Company and such Debenture shall have been surrendered as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
Conversion Proceeds constituting securities shall be issuable upon such
conversion shall be deemed to have become on the Date of Conversion the holder
or holders of record of the securities represented thereby; provided, however,
that any such surrender on any date when the stock transfer books for such
securities shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the conversion price in effect at the
close of business on the date when such Debenture shall have been so
surrendered with the conversion notice. In the case of conversion of a
portion, but less than all, of a Debenture, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder thereof, at the expense
of the Company, a Debenture or Debentures in the aggregate principal amount of
the unconverted portion of the Debenture surrendered. Except as otherwise
expressly provided in this Indenture, no payment or adjustment shall be made
for interest accrued on any Debenture (or portion thereof) converted or for
dividends or distributions on any security issued upon conversion of any
Debenture.
SECTION 15.04 Fractional Interests. No fractions of any
security or scrip representing fractions thereof shall be issued upon
conversion of Debentures. If more than one Debenture shall be surrendered for
conversion at one time by the same holder, the number of full securities which
shall be issuable upon conversion thereof shall be computed on the basis of
the aggregate principal amount of the Debentures so surrendered. If any
fraction of any security would, except for the provisions of this Section, be
issuable on the conversion of any Debenture or Debentures, the Company shall
make payment in lieu thereof in an amount of United States dollars equal to
the value of such fraction computed on the basis of the current market price
of such security on the last business day prior to the Date of Conversion.
SECTION 15.05 Conversion Price. The conversion price
("Conversion Price") per unit of Conversion Proceeds issuable upon conversion
of the Debentures, if any, shall initially be the amount specified as
contemplated in Section 2.01 for the Debentures of any series and shall be
subject to adjustment from time to time as specified as contemplated in
Section 2.01 for the Debentures of such series. Whenever the Conversion Price
is adjusted as herein provided, the Company shall promptly (i) file with the
Trustee and each conversion agent an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
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the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause to be
mailed a notice of such adjustment to each holder of Debentures at his address
as the same appears on the registry books of the Company. The Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section, as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
SECTION 15.06 Continuation of Conversion in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets. If any of
the following shall occur, namely: (a) any reclassification or change of
outstanding securities issuable upon conversion of the Debentures (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), (b) any
consolidation or merger to which the Company is a party as a result of which
the holders of such securities shall be entitled to receive stock, other
securities or other assets with respect to or in exchange for such securities
or (c) sale or conveyance of all or substantially all of the property or
business of the Company as an entirety (if the Company is the issuer of such
securities), then the Company, or such successor or purchasing corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the holder of each Debenture
then outstanding shall have the right to convert such Debenture into the kind
and amount of securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the amount of
such securities issuable upon conversion of such Debenture immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments specified as
contemplated by Section 2.3 for Debentures of the series. If, in the case of
any such consolidation, merger, sale or conveyance, the securities and
property receivable thereupon by a holder of outstanding securities issuable
upon conversion includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
holders of the Debentures as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section shall
similarly apply to successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture
shall be mailed to each holder of Debentures at his address as the same
appears on the registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Debentures upon the
conversion of their Debentures after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the
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Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
SECTION 15.07 Notice of Certain Events. So long as any
convertible Securities are outstanding, in case:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of any securities constituting
Conversion Proceeds otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of
such securities of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Company shall authorize any reclassification or change
of such securities (other than a subdivision or combination of such
securities), or any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or the sale or conveyance of all or substantially all the
property or business of the Company; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at an office or agency maintained
for the purpose of conversion of the Debentures, and shall cause to be mailed
to each holder of Debentures, at his address as it shall appear on the
registry books of the Company, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event
that more than one date is specified), a notice stating the date on which (1)
a record is expected to be taken for the purpose of such dividend,
distribution or rights, or if a record is not to be taken, the date as of
which the holders of such securities of record to be entitled to such
dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up is expected to become effective and
the date, if any is to be fixed, as of which it is expected that holders of
such securities of record shall be entitled to exchange their such
securities for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up.
SECTION 15.08 Taxes on Conversion. The Company will pay any
and all documentary, stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority thereof or therein in
respect of the issue or delivery of Conversion Proceeds on conversion of
Debentures pursuant thereto; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of Conversion Proceeds in a name other than
that of the holder of the Debentures to be converted and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
The Company extends no protection with respect to any other taxes imposed in
connection with conversion of Debentures.
SECTION 15.09 Company to Provide Stock. To the extent that
any Debentures are convertible into securities of the Company, the Company
shall reserve, free from pre-emptive rights, out of its authorized but
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unissued securities, sufficient securities to provide for the conversion of
the Debentures from time to time as such Debentures are presented for
conversion, provided, that nothing contained herein shall be construed to
preclude the Company from satisfying its obligations in respect of the
conversion of Debentures by delivery of repurchased Debentures which are
held in the treasury of the Company.
If any securities to be reserved for the purpose of conversion
of securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such securities
may be validly issued or delivered upon conversion, then the Company covenants
that it will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be, provided, however, that
nothing in this Section shall be deemed to affect in any way any obligation
of the Company to convert Debentures.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of such
securities, the Company will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Company may validly and
legally issue fully paid and non-assessable such securities at such adjusted
Conversion Price.
The Company covenants that all securities of the Company which
may be issued upon conversion of Debentures will upon issue be fully paid and
non-assessable by the Company and free of pre-emptive rights.
SECTION 15.10 Disclaimer of Responsibility for Certain
Matters. Neither the Trustee nor any agent of the Trustee shall at any time
be under any duty or responsibility to any holder of Debentures to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section
15.05, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture as specified as contemplated in Section 2.01 provided to be
employed, in making the same. Neither the Trustee nor any agent of the
Trustee shall be accountable with respect to the validity or value (or the
kind or amount) of any securities or property, which may at any time be issued
or delivered upon the conversion of any Debenture; and neither the Trustee nor
any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any agent of the Trustee shall be responsible for any failure
of the Company to issue, register the transfer of or deliver any securities or
property upon the surrender of any Debenture for the purpose of conversion or,
subject to Sections 7.01 and 7.02, to comply with any of the covenants of the
Company contained in this Article or specified as contemplated in
Section 2.01.
SECTION 15.11 Return of Funds Deposited for Redemption of
Converted Debentures. Any funds which at any time shall have been deposited
by the Company or on its behalf with the Trustee or any paying agent for the
purpose of paying the principal of and interest on any of the Debentures and
which shall not be required for such purposes because of the conversion of
such Debentures, shall after such conversion be repaid to the Company by the
Trustee or such other paying agent.
ARTICLE TWO
Miscellaneous Provisions
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SECTION 2.01. The Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 2.02. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 2.03. This Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By ________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By ________________________________
Name:
Title:
Attest:
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Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles )
On the ______ day of October, in the year one thousand nine
hundred ninety-six, before me personally came ________________ to me known,
who, being by me duly sworn, did depose and say that he resides at
; that he is
of SUNAMERICA INC., 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 the said instrument is such corporation
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.
________________________________
NOTARY PUBLIC
My Commission Expires
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the ______ day of October, in the year one thousand nine
hundred ninety-six, before me personally came to me known, who,
being by me duly sworn, did depose and say that he resides at
________________________
________________, that he is a of THE FIRST NATIONAL BANK OF
CHICAGO, 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.
________________________________
NOTARY PUBLIC
My Commission Expires
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